•  •?-\£-\>*sf&&Jf'm 


THE 


CONSTITUTIONAL    CONVENTION; 


HISTORY,  POWERS,  AND  MODES  OF  PROCEEDING. 


BY 

JOHN  ALEXANDER  JAMESON, 

JUDGE   OF   THE   SUPERIOR   COURT   OF   CHICAGO,   AND  PROFESSOR  OF   CONSTITUTIONAL 
LAW,   ETC.,   IN  THE   LAW   DEPARTMENT  OF  THE   CHICAGO   UNIVERSITY. 


Populus  non  omnis  hominum  ccetus  quoque  mode  congregatus,  sed  ccetua  multitudinis  juris 
consensu  ct  utilitatis  communione  sociatus.  —  CICERO,  de  Repub. 

They  that  go  about  by  disobedience  to  do  no  more  than  reforme  the  commonwealth  shall  find 
that  they  do  thereby  destroy  it.  —  HOBBES,  Leviathan. 


NEW   YORK: 
CHARLES   SCRIBNER  AND   COMPANY. 

:  S.  C.   GRIGGS  AND  COMPANY. 

1867. 


Entered  according  to  Act  of  Congress,  in  the  year  1866,  by 

JOHN  A.  JAMESON, 

in  the  Clerk's  Office  of  the  District  Court  of  the  United  States  for  the  Northern  District 

of  Illinois. 


RIVERSIDE,  CAMBRIDGE: 

STEREOTYPED    AND    PRINTED     BY 
H.   O.   HOUGHTON  AND   COMPANY. 


TABLE  OF  CONTENTS. 


CHAPTER  I. 

OF   THE  VARIOUS   KINDS   OF   CONVENTIONS. 

Leading  principles  of  the  American  system  of  government.  ^  The  function  of 
legislation,  how  distributed  abroad,  and  how  in  America.  0; 

Importance  of  the  Constitutional  Convention.  Enacts  the  fundamental  law. 
§§2,3. 

Constitutional  Conventions  and  Secession.     §  4. 

Various  species  of  Conventions  described  and  distinguished.     §§  4-16. 

I.  THE  SPONTANEOUS  CONVENTION,  or  PUBLIC  MEETING.    §§  4,  5. 

II.  THE  LEGISLATIVE  CONVENTION,  or  GENERAL  ASSEMBLY.    §6. 

III.  THE  REVOLUTIONARY  CONVENTION.    §§7-10. 

Examples  of,  in  England.     §  8. 

Examples  of,  in  early  American  history.     §§  9,  10. 

IV.  THE  CONSTITUTIONAL  CONVENTION.    §11. 

Where  the  Constitutional  Convention  exercises  the  powers  of  a 
Revolutionary  Convention,  or  vice  versa,  how  to  be  classed.  §  12. 

History  of  the  origin  and  development  of  the  Constitutional  Con 
vention  in  the  United  States.  §§  13,  14. 

Misconceptions  respecting  the  origin,  constitution,  and  powers  of  the 
Constitutional  Convention.  §§  15,  16. 

Fundamental  conceptions  to  be  first  developed  —  sovereignty,  or  a 
sovereign  lody,  and  a  Constitution,  or  law  fundamental.  §17. 


CHAPTER  n. 

OF    SOVEREIGNTY. 

Definition  of  the  terms  "  sovereign  "  and  "  sovereignty."    §  18. 

Distinction  between  "  sovereign"  and  "  supreme."     §  18,  note  1. 

Marks  or  tests  of  sovereignty,  as  laid  down  by  Austin.     §  19. 

Additional  marks.     §  20. 

Ground  of  sovereignty.     §  21,  note  2. 

The  question,  where  sovereignty  resides,  considered  theoretically.     §  21. 

The  attributes  of  sovereignty.     §  22. 

Modes  in  which  sovereignty  manifests  itself.     §§  23,  24. 


IV  TABLE   OF   CONTENTS. 

Direct  manifestations  through  public  opinion,  and  through  the  irregular  exhibi 
tion  of  power.  §  23. 

Indirect  manifestations  of  sovereignty,  through  governmental  agencies,  as,  the 
electors,  the  legislative,  executive,  and  judicial  departments,  and  the  Constitu 
tional  Convention.  §  24. 

Relative  rank  of  these  five  systems  of  agencies.     §  24. 
The  doctrine  of  constitutional  presumptions  stated.     §  25. 
Corollaries  by  their  aid  deduced  from  the  foregoing  principles.     §  25. 
The  locus  of  sovereignty,  as  a  question  of  fact :  — 
I.  In  foreign  states.     §  26. 
II.  In  the  United  States  of  America.     §§  27-53. 

(a).  The  question  considered  from  the  point  of  view  of  the  elementary 

principles  above  developed.     §§  27-29. 
The  definition  of  sovereignty  considered  and  applied.     §  27. 
The  marks  or  tests  of  sovereignty,  given  by  Austin,  applied.   §  28. 
The  additional  marks  or  tests  before  stated,  applied.     §  29. 
(&).  The  question   considered  from  the  point    of  view  of  historical 
facts  and  principles  tending  to  determine  the  question  of  Amer 
ican  nationality.     §§  30-50. 
What  it  is  to  be  a  nation.     §  30. 
What  it  is  not  to  be  a  nation.     §  31. 

In  the  light  of  these  definitions,  that  the  United  States  consti 
tute  a  nation,  inferred  — 

1.  From  the  fact,  that,  in  their  development  there  is  ob 

servable  a  perfect  conformity  to  the  method  of  Na 
ture  in  the  genesis  of  nations.  §§  32-35. 

The  method  of  Nature  exemplified.     §§  33,  34. 

Capital  steps  in  the  progress  of  the  United  States,  speci 
fied.  §§34,  35> 

2.  From  the  mode  of  ratification  of  the   Federal  Consti 

tution.     §§  36-38. 

View  of  the  "  States  Rights  School."    §  37. 
Observations  on  the  mode  of  ratification  adopted.  §  38. 

3.  From  the  expressed   opinions   of  contemporary  states 

men,  friends  as  well  as  enemies  of  the  Constitution. 
§§39-41. 

;1p  From  the  arguments  employed  to  defeat  the  Federal 
Constitution  in  the  Conventions  called  to  ratify  it 
§§  43-45. 

—  5.  From  judicial  decisions  and  the  opinions  of  statesmen, 
historians,  and  publicists  subsequent  to  the  establish 
ment  of  the  Constitution.  §§46-48. 

Opinion  of  the  Supreme  Court  of  the  United  States,  per 
Wilson,  J.  §  46. 

Opinions  of  Washington,  Dr.  Ramsay,  C.  C.  Pinckney, 
and  Charles  Pinckney.  §47. 

Opinions  of  Mr.  Grimke,  Chancellor  Kent,  John  Quincy 
Adams,  and  Judge  Story.  §  48. 


TABLE  OP   CONTENTS.  V 

Opinion,  expressed  by  Madison,  that  the  States  never 

were  sovereign.     §  49. 
Decision  to  the  same  effect  by  the  Supreme  Court   of 

the  United  States.     §  50. 

Observations  on  the  foregoing   authorities,  and  conclu 
sion  stated,  that  sovereignty  resides  in  the  American 
people,  or  nation.     §  51. 
The  question  of  allegiance,  considered.     §  52. 
Quasi-sovereignty  and  quasi-allegiance.     §  53. 
Allegiance  due  to  the  people  of  the  United  States  only. 

§§  52,  53. 

How  sovereignty  inheres  in  the  people  of  the  United  States.     §§  54-61. 
Two  answers  to  the  question,  namely  :  — 

(a).  That  sovereignty  resides  in  the  people,  considered  simply,  that  is,  as  a 

unit,  without  State  or  other  internal  discriminations  ;  and 
(&).  That  it  resides  in  the  people  only  as  discriminated  into,  and  acting  in, 

groups,  by  States.     §§  54-61. 

The  exercise  of  sovereignty  distinguished  from  the  possession  of  origi 
nal  sovereign  powers.     §  55. 
The   regular  distinguished  from  the  possible  exercise  of  sovereignty. 

§56. 

Application  of  these  principles  to  the  United  States.     §  57. 
Judging  by  the  regular   exercise   of  sovereignty  under  the   Federal 
Constitution,  sovereignty  resides  in  the  people  of  the  United  States 
as  discriminated  into  groups,  by  States.     §  57. 

Judging  by  the  possible  exercise  of  sovereignty,  that  power  resides  in 
the  people  simply,  without  State  or  other  internal  discriminations. 

§  57- 

The  capacity  in  which  the  States,  under  the  existing  Federal  Constitution, 
exercise  sovereignty,  —  sometimes  in  that  of  State  Governments,  and  sometimes 
in  that  of  subordinate  peoples,  together  constituting  the  American  nation. 
§§  58,  59. 

View  of  John  Austin.     §  60. 
View  of  Dr.  Brownson.     §  61. 

Meaning  of  the  term  "  sovereign  "  when  used  in  this  work  in  reference 
to  the  States  of  the  Union.    §  62. 


CHAPTER  HI. 

OF   CONSTITUTIONS. 

The  term  "Constitution"  defined.  Constitutions  discriminated  into  two  kinds  — 
Constitutions  as  objective  facts,  and  Constitutions  as  instruments  of  evidence. 
§63. 

Constitutions  "  as  they  ought  to  be,"  framed  for  imaginary  commonwealths,  con 
trasted  with  Constitutions  as  objective  facts.  §  64. 

I.  Nature  of  Constitutions,  as  objective  facts,  considered ;  and  herein,  principally, 


v  TABLE  OP   CONTENTS. 

of  the  question,  whether  Constitutions  as  objective  facts  are  founded  on 
compact.     §§  65-67. 

Are  Constitutions,  as  instruments  of  evidence,  founded  on  compact  ?     §  68. 
When  discrepancies  exist  between  the  Constitution  of  a  state  as  a  fact,  and  its 
Constitution  as  an  instrument  of  evidence,  which  has  the  superior  validity  ? 
§69. 

II.  Specific  varieties  of  Constitutions,  as  objective  facts.     §  70. 
Constitutions,  as  instruments  of  evidence,  discriminated  — 
First,  with  reference  to  the  mode  in  which  they  originate,  into  two  classes,  viz. : 

1.  Cumulative  Constitutions.     §§  71,  72. 

2.  Enacted  Constitutions.     §§  71,  73. 

Secondly,  with  reference  to  their  general  characteristics  as  sources  of  evidence, 
into  two  others,  viz. :  — 

3.  Unwritten  Constitutions.     §§71,  74. 

4.  Written  Constitutions.     §§  71,  74. 

Written  and  unwritten  Constitutions  distinguished.     §§  74,  75. 
Consequences  of  this  distinction.      The  two  kinds,  how  construed. 

§76. 

Advantages  of  written  Constitutions.     §  77. 
Disadvantages  of  written  Constitutions.     §  78. 
Opinion  of  De  Maistre.     §  78,  note  1. 
Advantages  of  unwritten  Constitutions.     §  79. 
Disadvantages  of  unwritten  Constitutions.     §  80. 
Difficulty  of  striking  a  balance  between  them.     Requisites  for  safety 

.  under  each,  considered.     §§  81-83. 
In  the  United  States  all  Constitutions,  considered  as  instruments  of  evidence 

except  two,  have  been  written  Constitutions.     §  84. 

Distinction  between  a  fundamental  law,  or  Constitution,  and  an  ordinary  .munici 
pal  law.     §§  85-87. 

Two  distinct  varieties  of  Constitutions  in  the  United  States, —  those  of  the  General 
Government  and  those  of  the  States.    Distinction  between  the  two.    §§89-91. 
Rules  of  construction  applicable  to  each.     §  91. 

The  Constitution  of  the  United   States  a  part  of  the  Constitution  of  each  State, 
and  the  Constitutions  of  all  the  States  parts  of  the  Constitution  of  the  United 

estates.     §  92. 
Both  kinds  form  governments  of  limited  jurisdiction.     §  93. 
Which  of  the  two  is  supreme  ?     §§  93,  94. 

Necessity  of  keeping  the  two  kinds  in  their  operation  distinct.     §  95. 
Opinion  of  Mr.  Webster  quoted.     §  95. 
Internal  structure  of  the  American  Constitutions.     §  96. 

Constitutions  commonly  consist  of  three  parts  :  — 

/^   1.  The  Bill  of  Rights.     Object  and  contents  of  a  Bill  of  Rights.     §§  96-99. 
The  Federal  Constitution  has  no  Bill  of  Rights,  why.     §  98. 

2.  The  Frame  of  Government,  description  of.     §§  100, 101. 

3.  The  Schedule.     Object  and  contents  of  a  Schedule.     §  102. 

Precedents  showing  the  extent  to  which  a  Schedule  has  been  em 
ployed.     §  103. 


TABLE    OF   CONTENTS. 


CHAPTER   IV. 

OF    THE    REQUISITES   TO   THE   LEGITIMACY   OF   CONVENTIONS?  AND   OF 
•  THEIR    HISTORY. 

Requisites  to  the  legitimacy  of  Constitutional  Conventions.     §§  104-259. 
Preliminary  observations. 

Meaning  of  the  term  "  legitimacy,"  and  its  derivatives.     §§  105-108. 

Meaning  of  the  term  "  revolution,"  and  its  derivatives.     §§  109-111. 

Importance  of  defining  the  term  revolution.     Doctrine  of  precedents.     §  112. 
I.  The  proper  mode  of  initiating  or  calling  a  Convention. 

The  question  considered  from  the  point  of  view  of  theoretical  principles. 
§§  114-124. 

But  two  modes  possible  :  — 

1.  By  the  intervention  of  unofficial  persons;  that  is,  by  private  citizens, 

giving  expression,  perhaps,  to  a  general  desire.     §  114. 
Observations  on  this  mode.     §§  114,  115. 

2.  By  some  authentic  act  of  the  sovereign  body,  through  some  branch  of  the 

existing  government.     §  116. 
Observations  on  this  mode,  in  general.     §  116. 

Particulars  involved  in  the  term  "  mode."     First,  agencies ;  second,  man 
ner  of  proceeding.     §  117. 

Examination  of  the  various  governmental  agencies,  with  respect  to  fitness 
to  discharge  the  function  of  calling  Conventions.     §§  118-121. 
(a).  The  electors.     §  118. 
(b).  The  judicial  department.     §119. 
(c).  The  executive  department.     §  120. 
(d).  The  legislative  department.     §  121. 
In  what  manner  a  Convention  should  be  called.     §§  122-123. 
Though  a  Convention  be  illegitimate,  the  Constitution  framed  by  it  may 

become  legitimate,  how.     §  124. 
The  proper  mode  of  calling  a  Convention,  looking  at  the  question  from 

the  point  of  view  of  precedents.     §§  125-259. 
Conventions  thus  far  held  divided  into  two  great  classes :  — 
(a)^  Such  as  were  held  during  the  revolutionary  period,  from  1775  to 

March  1789.    §§  125-169. 

History  of  the  times  in  which  these  Conventions  were  called,  and 
the  general  causes  by  which  their  legal  character  was  deter 
mined.  §§  126-130. 

Advice   of  the    Continental    Congress   to  Massachusetts,   New 
Hampshire,  Virginia,  and  South  Carolina,  in  1775,  to  form  in 
dependent  governments  therein.     §§  127,  128. 
General  recommendation  of  the  Congress  to  all  the  Colonies,  of 

May  10,  1776,  to  the  same  effect.     §  128. 
Observations  on  this  recommendation.     §  129. 
Conditions  and  elements  of  the  problem  to  be  solved  by  our 
fathers.     §  130. 


TABLE  OP   CONTENTS. 

New  Hampshire  Convention  of  1775.     History  and  character  of. 

§  131.  . 

New  Hampshire  Conventions  of  1778  and  1781.     History  and 
^-character  of.     §  132. 
{  South  Carolina  Convention  of  1776.     History  and  character  of. 

§133. 

)  Observations  on  this  Convention.     §  134. 
South  Carolina  Convention  of  1778.     History  of.     §  135. 
Character  of  the  Constitution  framed  by  it.     §  136. 
Character  of  the  Convention  of  1778.     §  137. 
Virginia  Convention  of  1776.     History  and  character  of.     §  138. 
New  Jersey  Convention  of  1776.      History  and  character  of. 

§§  139,  140. 
Delaware  Convention  of  1776.    History  and  character  of.   §§  141, 

142. 
Pennsylvania  Convention  of  1776.     History  and  character  of. 

§§  143,  144. 

Maryland  Convention  of  1 776.    History  and  character  of.    §  145. 
North  Carolina  Convention  of  1776.     History  and  character  of. 

§  146. 

Georgia  Convention  of  1776.     History  and  character  of.     §  147. 
Georgia  Convention  of  1788,  and  the  two  Georgia  Conventions 

of  1789.     History  and  character  of.     §§  148,  149. 
New  York    Convention   of   1776.      History  and   character  of. 

§§  150-152. 
Vermont  Convention  of  1777.    History  and  character  of.    §§153, 

154. 
Vermont  Conventions  of  1785  and  1786.     History  and  character 

of.     §  155. 
Massachusetts  Convention  of  1778.    History  and  character  of. 

§156. 
Massachusetts  Convention  of  1779.     History  and  character  of. 

§§  157,  158. 

^    First  Federal  Convention  —  the  Continental  Congress.     Char 
acter  of.     §§159-162. 
Mode  of  ratification  of  the  Articles  of  Confederation  as  bearing 

on  the  question  of  their  legitimacy  as  a  Constitution.     §  161. 
Defects  of  the  government  of  the  Confederation.     §  162. 
Virginia  Resolutions  of  1786,  and  the  Annapolis   Convention. 

§163. 

Recommendations  of  the  Annapolis  Convention.     §  163. 
Observations  on  the  Virginia  Resolutions  and  on  the  Annapolis 

recommendations.     §  164. 

Action  of  Congress  on  these  recommendations.     Call  of  the  sec 
ond  Federal  Convention.     §  165. 
Character  of  this  Convention.     §  166. 
State   Conventions  called  to  ratify  the  Federal   Constitution. 

History  and  character  of.     §  167. 


TABLE   OF   CONTENTS.  IX 

/Jpther  ratifying  Conventions.     §  167. 

/'General  observations  on  the  Conventions  of  the  revolutionary 

__.period.     §§  168,  169. 
(6).  Conventions  called  since  the  Federal   Constitution  went  into 

operaiton,  in  March,  1789. 
Several  varieties :  — 

1.  Conventions  to  frame  Constitutions  for  new  States  to  be 

formed  within    the   jurisdiction   of  States,  members   of 

the  Union.     §§170-193. 
Provision    of    the  Federal    Constitution    governing    these 

cases ;    names   of  the  States  so  formed ;    and  requisites 

for    the    legitimacy  of    the    Conventions    concerned  in 

forming  them.     §  171. 
Case  of  Vermont.     §172. 
Kentucky    Convention    of  1792.      History  and    character 

of.     §§173,174. 
Tennessee  Convention  of  1796.      History   and   character 

of.     §§  175-182. 
Discussion  in  Congress  on  the  admission  of  Tennessee  into 

the  Union.     §§  179,  180. 

Observations  on  the  Tennessee  case.     §§  181,  182. 
Maine    Convention    of   1819.      History  and  character  of. 

§§  183-185. 
Conventions  of  Virginia,  and  of  West  Virginia,  of  1861. 

History  and  character  of.     §§  186-193. 

2.  Conventions  called  to  frame  Constitutions  for  new  States  to 

be  formed  out  of  territory  of  the  United  States,  organ 
ized  under  its  authority,  or  acquired  in  an  organized  con 
dition  from  foreign  States.  §§  194-216. 

(a).  Such  Conventions  as  have  been  assembled  regu 
larly,  in  pursuance  of  enabling  Acts  of  Con 
gress.  §  195. 

(5).  Such  as  have  been  convened  irregularly,  without 

enabling  Acts.     §§  196-216. 
Treaties  and  deeds  of  cession  bearing  on  this  class  of 

Conventions.     §§196,197. 
Michigan  Convention  of  1835.      History  and  character 

of.     §198. 
Action  of  Congress  on  the  admission  of  Michigan  into 

the  Union.     §  199. 
Michigan  Conventions  of  1836,      History  and  character 

of.     §§199,200. 

Observations  on  the  Michigan  Conventions.     §§  201-209. 
Opinion  of  John  C.  Calhoun.     §  204. 
Opinion  of  Senator  Ewing.     §  205. 
Opinion  of  Senator  Niles.     §  206. 
Decision  of  the  Supreme  Court  of  Michigan  as  to  the 

time  when  Michigan  became  a  State.    §  207. 


TABLE   OF   CONTENTS. 

Decision  of  the  Supreme  Court  of  the  United  States. 

§207. 

Dissenting  opinion  of  McLean,  J.     §  208. 
Observations  on  these  decisions  and  on  the  Michigan 

case.     §  209. 
Other   Conventions    called   without   enabling    Acts   of 

Congress.      General  description  of.     §210. 
Kansas  Convention  of  1855,  at  Topeka.      History  and 

character  of.     §§211,212. 
Kansas  Convention   of  1857,  at  Lecompton.      History 

and  character  of.     §§  213-216. 

Opinion  of  President  Buchanan  respecting  the  Lecomp 
ton  Convention.     §214. 
Refutation  of  President  Buchanan,  by  Henry  Winter 

Davis.     §215. 
The  Lecompton   Constitution,  action  of  Congress  upon 

The  «  English  Bill."     §216. 
3.  Conventions  called  to  revise  the  Constitutions  of  States, 

members  of  the  Union.     §§217-259. 
Various  classes  :  — 

(a).  Such  as  have  been  convened  for  legitimate  con 
stitutional  purposes,  regularly : 

I.  By  the  legislatures  of  the  respective  States, 

acting  — 

1.  In  pursuance  of  special  provisions  of 

their  Constitutions.     §§  217,  218. 
List  of  these  Conventions,  and  observa 
tions  on  them.     §  218,  and  note. 

2.  Under  their  general  legislative  power, 

without  the  authorization  of  their  Con 
stitutions.     §219. 

List  of  the   Conventions  of  this  class. 
§219,  note. 

II.  By  special  bodies  created  for  the  purpose  by 

the  Constitution,  called  Councils  of  Cen 
sors.     §  220. 

(6).  Such  Conventions  as  have  been  called,  for  legiti 
mate  constitutional  purposes,  irregularly  :°— 
1.  In  disregard  of  constitutional  provisions  pre 
scribing   particular  modes   in  which   only 
amendments  to  the  Constitution  should  be 
effected.     §§  221-225. 
Pennsylvania  Convention  of  1789.    History 

of.     §§  221-222. 
Delaware    Convention  of  1792.     History  of. 

§223. 

Maryland  Convention  of  1850.     History  of. 
§224. 


TABLE   OF   CONTENTS. 

Observations    on    the    Conventions   of   this 

class.     §  225. 

2.  In  defiance  of  the  existing  governments  of 
the  States  concerned,  though  in  pretended 
conformity  to  constitutional  principles. 
§226. 

Rhode-Island   Convention  of  1841  —the  so- 
called  "  People's    Convention."      History 
and  character  of.     §§  226-246. 
Previous  efforts  to  secure  a  revision  of  the 

charter  of  Charles  II.     §  226. 
"  Suffrage  Associations."    "  People's  Conven 
tion  "°called.     §  227. 

"People's    Constitution"    formed   and  pro 
claimed.     §§  227,  228. 
Forcible   attempts    to   carry   it  into    effect. 

§228. 

Judicial   decisions    by    State    and    Federal 
Courts  relating  to  the  "  People's  Constitu 
tion."     §§  229-231. 
The  Rhode  Island  question  considered  upon 

principle.     §§  232-246. 
Argument  of  B.  F.  Hallett.     §  233. 
Argument  of  Daniel  Webster.     §§  234,  235. 
Observations    on    Mr.    Hallett's    argument. 

§§  236-246. 
Bearing  of  the  Declaration  of  Independence 

on  the  question.     §  240. 
Bearing  of  the  Bills  of  Rights  of  the  States 

generally  on.  the  question.     §§  241-244. 
The  author's  view  confirmed  by  considering 
the  doctrine  of  Passive  Obedience  or  Non- 
Resistance,  prevalent  at   and  before  the 
time  of  the  Revolution.     §§  242-244. 
Bearing  of  the  Bills  of  Rights  of  Virginia, 
Rhode  Island,  and  Maryland  on  the  ques 
tion.     §§  245-246. 
(c).  Secession      and      Reconstruction     Conventions. 

§§  247-259. 
Secession    Conventions,    History   of  the   call   of. 

§§247,248. 

Character  of.     §§  249,  250. 
Reconstruction  Conventions.     History  of  the  call 

of.     §§  250-258. 

Proclamation  of  President  Lincoln.     §  255. 
Proclamations  of  President  Johnson.     §  257. 
Character  of  the    Reconstruction    Conventions. 
§258. 


Xll  TABLE   OF   CONTENTS. 

Montgomery  Convention  of  1861.     History  and 

character  of.     §  259. 

II.  By  whom  Conventions  should  be  elected.     §§  260-266. 
(a).  The  question  considered  upon  principle  :  — 

1.  In  times  of  peace  and  constitutional  order.     §  260. 

2.  When  the  sovereign  political  body  is  in  a  state  of  disorganization. 

§261. 
(&).  The  question  considered  in  the  light  of  precedents  :  — 

1.  Of  precedents  since  the  Revolution.     §  263. 

2.  Of  precedents  during  the  Revolution.    §  263. 
Exceptional  cases  considered.     §§  264-266. 

CHAPTER  V. 

OF    THE   ORGANIZATION   AND    MODES   OF   PROCEEDING   OF   CONVENTIONS. 

Of  the  constitution  of  Conventions.     §§  267-271. 

1.  Who  may  be  members  of  Conventions.     §§  267-269. 

2.  Should  Conventions  consist  of  one  Chamber  or  of  two?     §§  270,  271. 
Of  the  internal  organization  of  Conventions.     §§  272-274. 

Of  the  call  to  order.     §  272. 

Of  the  officers  of  Conventions,  temporary  and  permanent.     §  274. 

Reports  of  proceedings.     §  274. 

Credentials  and  list  of  members.     §  276. 

Should  members  of  Conventions  be  sworn.     §§  277-283. 

What  Conventions  have,  and  what  have  not,  administered  an  oath.      Form 

of  oath  administered.     §  277. 

Grounds  of  opposition  to  administration  of  an  oath.     §  278. 
Question  as  to  form  of  the  oath.      Discussion  in  North  Carolina,  in  1835, 

and  in  Illinois,  in  1862.     §§  279-283. 
Rules  of  Order.     §  284. 

Committees.      Employment  of  in  Conventions.     §§  285-296. 
Different  modes  of  proceeding  in  Conventions :  — 

1.  Without  Committees.     §286. 

2.  With  Committees.     §§  287-296. 

Different  modes  of  proceeding  with  Committees  — 

(a).  With  Committee  of  the  Whole  only.     §287. 

(6).  With  a  single  Select  Committee.     §  288. 

(c).  With  numerous  Select  or  Standing  Committees.     §  289. 
Reasons  in  favor  of  Committee  of  the  Whole.     §  290. 
Objections  to  Committee  of  the  Whole.     §  291. 
Reasons  in  favor  of  Select  or  Standing  Committees.     §  292. 
Objections  to  such  Committees.     §  293. 
Precedents  as  to  use  of  Committees.     §§  294,  295. 
Number  of  Standing  Committees,  how  determined.     §  296. 
By  whom  appointed.     §  296. 
How  Conventions  employed  whilst  Standing  Committees  are  preparing 

their  reports.    .§297. 


TABLE   OF   CONTENTS.  Xlll 

Reports,  how  made.     §§  298-301. 

How  disposed  of  in  Convention.     §  302. 

Committees  on  Revision,  or  on  Phraseology  and  Arrangement.     §  303. 

Signing  of  the  Constitution,  significance  of  the  act.     §  304. 

CHAPTER  VI. 

OF    THE   POWERS    OF    CONVENTIONS. 

Meaning  of  the  term  power.     §  305. 

General  conception  of  the  Constitutional  Convention.     §  306. 

Two  theories  as  to  the  powers  of  Conventions.     §  307. 

Instances  in  which  the  first  theory  has  been  propounded.     §  308. 

Instances  in  which  the  second  theory  has  been  propounded.     §§  309,  310. 

The  first  theory,  that  of  conventional  sovereignty,  a  novelty.    Its  history.   §§  311, 

312. 

To  refute  the  first  theory  the  principal  object  of  this  work.     §  313. 
Order  of  the  discussion  stated.     §  314. 

I.  The  powers  of  Conventions  considered  with  reference  to  their  external  rela 
tions  ;  that  is,  particularly  — 

(a).  Their  powers  in  relation  to  the  sovereign,  or  to  sovereign  rights. 

Are  Conventions  possessed  of  sovereign  powers  ?     §§  315-318. 
Sense  in  which  Conventions  wield  sovereign  powers.     §  319. 
(&).  Powers  of  Conventions  growing  out  of  their  relations  to  the  state 
as  a  whole.    Is  a  Convention  a  part  of  the  governmental  system 
of  the  state  ?     §§  320,  321. 

Is  a  member  of  a  Convention  an  officer  ?     §§  322-324. 
Can  a  Convention  fill  vacancies  in  the  governmental  departments  ? 

§  325. 
Can  it  eject  from  office,  or  direct  in  the  discharge  of  their  duties, 

persons  holding  office  in  the  government  ?     §§  326-330. 
Vacating  ordinance  of  the  Missouri  Convention  of  1865.     §§  327- 

330. 

(c).  Powers  of  Conventions  growing  out  of  their  relations  to  the  electors  f 
Their  relations  to  the  electors  in  general.     §§  331-334. 
Practical  questions  depending  on  those  relations  :  — 

1.  Can  a  Convention  disfranchise  any  portion  of  the  electors  ? 

§§  335-337. 
True  theory  of  the  suffrage.     §§  336,  337. 

2.  Can  a  Convention  assume  the  function  of  the  electors  to  fill 

vacancies  in  its  own  ranks  ?     §  338. 

3.  Can  a  Convention  authorize  the  colleagues  of  a  deceased  or 

resigning  member  to  name  his  successor  ?     §  339. 

4.  Can  a  Convention  issue  precepts  to  the  electors  directing  new 

elections  to  fill  vacancies  in  its  own  ranks  ?     §§  340-347. 
Case  in  the  Massachusetts  Convention  of  1853  stated.   §§341, 

342. 
Argument  of  B.  F.  Butler,  §  343. 


XIV  TABLE   OF   CONTENTS. 

Argument  of  B.  F.  Hallett.     §  344. 

Reply  of  Marcus  Morton.     §  345. 

Reply  of  Joel  Parker.     §  346. 

Observations  upon  the  Massachusetts  case.    §  347. 

5.  Can  the  electors  fill  a  vacancy  in  a  Convention  at  any  time 

and  in  any  manner  they  please  ?     §§  348,  349. 

6.  Can  a  Convention  receive  as  a  delegate  a  person  elected  at  a 

time  or  in  a  manner  not  provided  by  law  ?     §  350. 

7.  Can  a  Convention  limit  the  discretion  of  the  electors  in  the 

discharge  of  their  appropriate  duties  ?     §§  351-361. 
Case  in  the  New  York  Convention  of  1846.     §§  353,  354. 
Case  in  the  Louisiana  Convention  of  1844.     §§  355-357. 
Observations  on  the  Louisiana  case.     §§  358-361. 

8.  Have  the  electors  power  to  instruct  their  delegates  to  Con 

ventions?     §§362-364. 

(d).  Powers  of  Conventions  growing  out  of  their  relations  to  the  several 
departments  of  the  government,  legislative,  executive,  and  ju 
dicial.  §§  366-449. 

1.  To  the  executive  and  judicial  departments.     §  366. 

2.  To  the  legislative  department.     §§367-449. 

General  powers  of  legislatures  and  Conventions  contrasted. 

§§  367-375. 
Two  classes  of  questions  considered  :  — 

(a).  Questions  relating  to  the  powers  of  legislatures  to  bind 

Conventions,  or  of  Conventions  to  nullify  acts  of 

the  legislature.     §§  376-418. 

1.  Can  legislatures  impose  conditions,  restrictions  or 
limitations  upon  Conventions,  or  dictate  their  or 
ganization  or  modes  of  proceeding  ?  §§  3  76-409. 

General  consideration  of  the  question.    §§  377-383. 

Discussion  of,  in  the  Federal  Convention.  §§  383- 
386. 

Discussion  of,  in  the  North  Carolina  Convention  of 
1835.  §  387. 

Opinion  of  the  Supreme  Court  of  Massachusetts 
on,  in  1833.  §  388. 

Observations  upon  this  opinion.     §  389. 

When  an  Act  of  a  legislature  calling  a  Conven 
tion  has  been  voted  on  by  the  people,  what  is 
the  source  of  its  validity  ?  §§  389-409. 

Opinion  of  the  Supreme  Court  of  New  York  on 
this  question.  §§  390-392. 

Observations  upon  this  opinion.     §§  393-399. 

Discussion  of  the  question  in  the  Massachusetts 
Convention  of  1853.  §§  400-403. 

Observations  upon  this  discussion.     §§  404-406. 

Opinion  of  the  Supreme  Court  of  Illinois  bearing 
on  the  question.  §§  407-409. 


TABLE   OF   CONTENTS.  XV 

2.  Can  legislatures  bind  Conventions  to  submit  the 

fruit  of  their  labors  to  the  people  ?      §§410- 
414. 

Discussion  of  this  question  in  the  Illinois   Con 
ventions  of  1847  and  1862.     §  414. 

3.  When  a  Convention  has  submitted  a  Constitution 

at  a  particular  time  or  in  a  particular  manner, 

can  the  legislature  alter  the  time  or  mode  of 

submission  ?     §§  415-418. 
Case  in  Kansas  considered.     §  415. 
Observations  on  the  Kansas  case.     §§  416,  417. 
Opinion  of  the  Supreme  Court  of  Delaware,  cited. 

§418. 

(5).  Questions  as  to  the  power  of  Conventions  to  legislate, 
or  to  discharge  functions  imposed  by  the  Federal 
Constitution  upon  legislatures.  §§  419-449. 

1.  Is  a  Convention  possessed  of  the  power  of  ordi 

nary  legislation  ?     §§  420-441. 
The  question  considered  — 

First,  in  the  light  of  principles.     §§  420-425. 
Secondly,  in  the  light  of  custom  and  precedent. 

§§  426-441. 
Practical  questions  discussed  :  — 

(a) .  Has  a  Convention  power  to  repeal  Acts  of 
the  legislature  ?  Chicago  Ordinance  of 
the  Illinois  Convention  of  1862.  §§  430- 
434. 

(6).  Have  Conventions  power  to  appropriate 
money  out  of  the  public  treasury? 
§§  435-441. 

2.  Can  a  Convention  act  as  a  legislature  in  matters 

required  by  the   Federal   Constitution   to  be 

transacted  by  the  legislatures  of  the  States? 

§§442-447. 
There  may  be  two  cases :  — 

(a).  Can  a  Convention  assume,  as  a  legis 
lature,  to  prescribe  the  "  times,  places, 
and  manner  of  holding  elections  for 
senators  and  representatives"  in  Con 
gress.  Case  in  the  Illinois  Convention 
of  1862.  §§  442-446. 

(ft).  Can  a  Convention,  as  a  legislature,  ratify 
proposed  amendments  to  the  Federal 
Constitution?  §447. 

3.  Can  a  Convention  limit  a  discretion  confided  to  a 

State  legislature  by  the   Constitution    of   the 
United  States  ?     §§  448,  449. 
II.  The  powers  of  Conventions  considered  with  reference  to  their  internal  re- 


XVI  TABLE   OP    CONTENTS. 

lations;  to  the  perfecting  of  their  organization;  to  the  maintenance  of 
discipline  over  their  own  members,  or  over  strangers ;  and  to  the  prolon 
gation  or  perpetuation  of  their  existence.     §§  450-478. 
General  view  of  the  powers  of  Conventions  in  this  respect.     §§  451-458. 
First.  Of  powers  expressly  given.     §  451. 
Second.  Of  implied  or  incidental  powers.     §§  453-470. 
Power  to  appoint  their  own  officers.     §  454. 
Power  to  supply  themselves  with  stationery,  public  journals,  reporters, 

&c.     §§  454-457. 
Power  to  order  printing.     §  458. 
Power  to  make  and  enforce  rules  of  order.     §  459. 
Power  to  arrest  or  punish  offences  committed  against  the  body  itself  or 
its  members.     §§  459-472. 

1.  For  offences  committed  by  their  own  members,  in  their  own 

presence.     §§  460-464. 

2.  For  offences  committed  by  strangers.     §§  465-470. 
Case  in  the  Illinois  Convention  of  1862.     §§  467,  468. 
Case  in  the  Louisiana  Convention  of  1864.     §§  479,  470. 

Privileges  of  members  of  Conventions.     §§  471,  472. 

Power  of  Conventions  to  prolong  or  perpetuate  their  existence.  §§  473- 
478. 

Reconvocation  of  the  Louisiana  Convention  of  1864,  in  July  1866,  con 
sidered.  §§  474-478. 

CHAPTER  VII. 

OF    THE   SUBMISSION    OF   CONSTITUTIONS   TO    THE   PEOPLE. 

Duty  of  Conventions  to  submit  the  fruit  of  their  labors  to  the  people.     Ground 

of  the  duty.     §  479. 
The  duty  considered  in  three  cases :  — 

I.  Where  neither  the  Convention  Act  nor  the  Constitution  requires  submis 
sion.     §5  480,  481. 

II.  Where  submission  is  expressly  required.     §§  482,  483. 
III.  Where  submission  is  expressly  dispensed  with.     §§  484-486. 
Precedents  as  to  submission.     §  487  and  notes. 
Observations  on  these  precedents.     §§  488-490. 

Cases  of  exceptional  submission,  and  of  non-submission  considered.    §§  491-495. 
Case  of  the  South  Carolina  Convention  of  1778.     §  491. 
Case  of  the  Pennsylvania  Convention  of  1789.     §  491. 
Case  of  the  New  York  Convention  of  1801.     §  492. 
Cases  of  the  Secession  and  Reconstruction  Conventions.     §  493. 
Peculiar  mode  of  submission  in  Vermont.     §  494. 
Cases  of  the  Territories  forming  their  first  Constitutions.     §  495. 
Separate  topics  necessary  to  a  complete  exposition  of  the  subject  of  this  chapter, 
stated.     §  496. 

I.  By  whom  the  particular  regulations  necessary  for  submitting  Constitu 
tions  ought  to  be  made.     §§497-499. 


TABLE   OF   CONTENTS.  XV11 

Theoretical  view  of  the  question.     §  497. 
Precedents.     §§498,499. 

II.  To  whom  Constitutions  ought  to  be  submitted.     §§  500-509. 
Theoretical  view  of  the  question.     §  500. 
Precedents.     §  501-509. 

General  current  of  the  precedents  stated.     §  501. 
Exceptional  cases  considered.     §§  502-509. 

Cases  of  the  two  Constitutions  of  the  United  States.     §§  502,  503. 
Cases  of  the  Virginia  Constitutions  of  1830  and  1851,  and  of  those  of 
Rhode  Island  of  1842,  and  of  West  Virginia  of  1863.     §§  508,  509. 
Cases  of  the  Tennessee  Constitution  of  1834,  and  of  the  Maryland 

Constitution  of  1864.     §  509,  note. 

IE.  Nature  of  the  act  performed  by  the  persons  or  body  to  whom  submis 
sion  is  made.     §§510-513. 

The  act  compared  with  the  three  classes  of  acts  —  legislative,  executive, 
and  judicial. 

(a).  Is  it  a  judicial  act  ?     §  510. 

(b).  Is  it  an  executive  act  ?     §§  510-512. 

The  act  compared  with  the  three  kinds  of  executive  acts :  — 

1.  Administrative  acts.     §  510. 

2.  The  negative,  or  veto.     §  511. 

8.  The  act  of  signing  or  assenting  to  bills.     §  512. 
(c).  Is  it  a  legislative  act  ?     §  513. 

Opinion  of  Mr.  Austin.     §  513,  concluding  note. 
IV.  In  what  manner  Constitutions  should  be  submitted.     §§  514-520. 
Theoretical  view  of  the  question.     §§  514,  515. 
Precedents.     §§  516-520. 

Case  of  the  Lecompton  Constitution.      §§  517-520. 
V.  How  Constitutions  should  be  certified  and  promulgated.     §§  521-524. 
Precedents  stated  and  considered.     §§  522-524. 


CHAPTER  VHI. 

OF   THE   AMENDMENT   OF    CONSTITUTIONS. 

Necessity  of  some  provision  for  amending  Constitutions.     §  525. 
Modes  of  effecting  amendments  here  and  abroad  contrasted.     §  526. 
Early  views  on  the  subject  in  this  country,  unsettled.     §  527. 
General  policy  of  the  American  States  stated.     §§  528,  529. 

I.  Modes   provided   by  the  various  American   Constitutions   for   effecting 
amendments :  — 

First  mode,  that  by  the  agency  of  Conventions.     §  530,  and  notes. 
Second  mode,  that  by  the  agency  of  our  General  Assemblies.    §§  530, 

531,  and  notes. 

II.  Excellences  and  defects  of  these  two  modes.     §  531. 
(a).  The  mode  by  Conventions.     §§  526-531. 

Requisites  for  safety,  when  this  mode  is  employed.     §§  532-534. 
b 


XVlii  TABLE   OF    CONTENTS. 

First  check  or  safeguard,  by  increasing  the  majority  necessary 

to  call  a  Convention.     §  533. 
Second  check,  or  safeguard,  by  submission  of  the  question  of 

calling  Conventions  to  the  people.     §  534. 
Precedents.     §§  535-537. 
Provisions  of  our  Constitutions  on  the  subject,  of  three  kinds:  — 

1.  Such  as  look  to  a  periodical  expression  of  the  sense  of  the 

people  on  the  question  of  calling  a  Convention.     §  535. 

2.  Such  as  look  to  a  vote  of  the  people  upon  the  question, 

whenever  such  a  step  should  seem  to  the  legislature  to 
be  advisable.     §  536. 

3.  Such  as  impose  restrictions  upon  the  call  of  Conventions, 

in  negative  terms.     §  537. 
(&).  The  mode  by  the  agency  of  the  legislature,  without  a  Convention. 

§§  538-543. 

Requisites  for  safety,  when  this  mode  is  employed.     §§  538-540. 
Particular  provisions  of  the  various  Constitutions  prescribing  this 

mode.     §§  541-543. 
Whichever  of  these  two  modes  is  employed,  the  prior  intervention 

of  the  legislature  generally  necessary.     §§  544-546. 
Exceptions  considered.     §§  544-545. 
Practical  questions  relating  to  the  subject  of  this  chapter.    §§  547-574. 

I.  What  is  the  nature  of  the  act  of  a  legislature  when  it  participates  in 
the  amending  of  a  Constitution  in  either  of  the  modes  indicated '? 
§§  547-550. 

1.  So  far  as  it  prescribes  a  rule  of  action,  its  act  is  a  law.     §§  547, 

548. 

2.  So  far  as  it  simply  affirms  the  necessity  or  expediency  of  amend 

ments,  it  is  a  recommendation  merely,  and  not  a  law.     §§  549, 
550. 

Opinion  of  Mr.  Webster  and  others  in  the  Massachusetts  Conven 
tion  of  1820.     §  549. 
Opinion  of  Mr.  Thompson,  in  the  Virginia  Convention  of  1829. 

§  550. 

II.  To  what  extent  may  a  legislature  propose  specific  amendments  to  a  Con 
stitution  ?     §§  551-555. 
Cases  of  The  State  v.  Cox,  and  of  Eason  v.  The  State,  decided  by  the 

Supreme  Court  of  Arkansas,  stated.     §§  551-553. 
Observations  upon  these  cases.     §§  554,  555. 

III.  Should  specific  amendments  to  a  Constitution,  made  through  the  agency 
of  a  legislature,  be  submitted  to  the  Executive  for  approval  ?  §§  556- 
562. 

1.  The  question  considered  with  reference  to  the  Federal  govern 
ment.     §§  556-560. 
Precedents.    Opinion  of  the  Supreme  Court  of  the  United  States. 

§557. 

Discussion  in  the  United  States  Senate,  in  1803.     §  558. 
Discussion  in  the  United  States  Senate,  in  1865.     §§  559,  560. 


TABLE   OF    CONTENTS. 

2.  The  question  considered  with  reference  to  the  State  governments. 

§§  561,  562. 

IV.  When  an  amendment  to  the  Federal  Constitution  has  been  regularly 
proposed  for  ratification,  to  the  State  legislatures,  by  Congress,  and 
one  of  those  bodies  has  passed  upon  the  question  in  the  negative, 
may  a  subsequent  legislature  reconsider  and  reverse  that  action? 
§  563. 

V.  When  a  Constitution  contains  a  provision  for  its  own   amendment,  m 
either  of  the  modes  above  specified,  can  another  and  different  mode 
be  adopted,  or  must  the  mode  prescribed  be  alone  pursued  ?     §§  564- 
574. 
There  may  be  two  cases :  — 

1.  Where  the  Constitution  contains  provisions  forbidding  amendments 

except  in  the  mode  therein  prescribed.     §  564. 
Precedents.     §§  565,  566. 

Opinion  of  Senator  Bayard,  of  Delaware.  §  567. 
Opinion  of  Senator  Johnson,  of  Maryland.  §  562. 
Observations  on  these  opinions.  §§  569,  570. 

2.  Where  the  terms  of  the  Constitutional  provision  are  permissive,  with 

out  restrictive  words.     §§  571-576. 
Precedents.     §§  571-573. 

Opinion  of  the  Supreme  Court  of  Massachusetts.     §§  574-575. 
The  question,  whether  these  principles  apply  to  amendments  to  the 

Federal  Constitution,  considered.     §  576. 

APPENDIX. 

A.  List  of  all  the  Conventions  thus  far  held  in  the  United  States,     p.  533. 

B.  Objections  of  the  New  York  Council  of  Revision  to  the  New  York  Conven 

tion  Act  of  1820.     p.  538. 

C.  Opinion   of  the  Judges  of  the  Supreme  Judicial  Court  of  Massachusetts, 

respecting  the  powers  of  Conventions  to  propose  amendments  to  the 
Constitution,     p.  540. 

D.  Opinion  of  the  Judges  of  the  Supreme  Court  of  New  York,  respecting  the 

power  of  the  legislature  to  modify  a  Convention  Act  which  has  been 
voted  upon  by  the  people,     p.  542. 

E.  Official  proceedings  culminating  in  the  reassembling  of  the  Louisiana  Con 

vention  of  1864,  in  July,  18G6.     p.  545. 


CONSTITUTIONAL    CONVENTIONS. 


CHAPTER   I. 

§  1.  IT  is  my  purpose,  in  the  following  pages,  to  inquire  into 
the  history,  powers,  and  modes  of  proceeding  of  the  CONSTI 
TUTIONAL  CONVENTION,  one  of  the  most  important  and  most 
characteristic  of  the  political  institutions  of  the  United  States. 

Of  the  American  system  of  government,  the  two  leading 
principles  are,  first,  that  laws  and  Constitutions  can  be  rightfully 
formed  and  established  only  by  the  people  over  whom  they  are 
to  be  put  in  force ;  and,  secondly,  that  the  people  being  a  cor 
porate  unit,  comprising  all  the  citizens  of  the  state,  and,  there 
fore,  too  unwieldy  to  do  this  important  work  directly,  agents  or 
representatives  must  be  employed  to  do  it,  and  that,  in  such 
numbers,  so  selected,  and  charged  respectively  with  such  func 
tions,  as  to  make  it  reasonably  certain  that  the  will  of  the  peo 
ple  will  be  not  only  adequately  but  speedily  executed.1 

The  function  of  framing  and  enacting  the  statute  law  is 
commonly,  by  the  practice  of  all  representative  governments, 
intrusted  to  a  numerous  body,  called  a  legislature.  Constitu 
tions,  on  the  other  hand,  considered  as  written  instruments,  are 
the  work  of  various  agencies,  according  to  the  genius  or  special 
circumstances  of  the  states  concerned,  some  being  formed  by 
the  executive  branch  of  the  government,  some  by  the  legisla 
ture,  and  some  by  a  body  for  that  purpose  specially  chosen  and 
commissioned.  Thus,  in  England,  this  duty  is  exclusively  com 
mitted  to  King,  Lords,  and  Commons  in  Parliament  assembled. 
Under  the  imperial  regimes  of  the  first  and  the  third  Napoleons, 
in  France,  the  plebiscites,  determining  the  form  and  powers  of 
the  government,  though  nominally  the  work  of  the  Senate,  were 
and  are  really  dictated  by  those  monarchs.  With  us,  in  Amer- 

1  See  Works  of  Daniel  Webster,  Vol.  VI.  pp.  221-224. 
1 


2  PRINCIPLES   OF   AMERICAN   GOVERNMENTS. 

ica,  there  is  set  apart  a  special  agency,  to  which  is  confided 
wholly,  or  mainly,  the  business  of  fundamental  legislation,  —  the 
Constitutional  Convention.  It  is  this  agency  which  frames  our 
Constitutions,  and  which,  generally,  as  changes  in  them  become 
necessary,  is  charged  with  maturing  the  needed  amendments. 
In  some  cases,  under  authority  for  that  purpose  expressly  given, 
it  both  forms  and  establishes  our  fundamental  codes,  but  com 
monly  it  acts  in  conjunction  with  some  other  department  of  the 
existing  government ;  the  one  presenting,  after  mature  delibera 
tion,  in  the  form  of  proposals,  a  connected  scheme,  and  the 
other  by  its  sanction  imparting  to  that  scheme  the  force  and 
vigor  of  law. 

§  2.  To  any  society,  far  enough  advanced  in  civilization  to 
demand  as  well  the  ascertainment  as  the  protection  of  its  civil 
and  political  rights,  no  institution  could  be  of  more  interest  than 
one  charged  thus  with  the  role  of  both  founder  and  restorer  of  its 
social  machinery.  Is  this  institution,  it  might  be  asked,  subject 
to  any  law,  to  any  restriction  ?  What  claims  does  it  itself  put 
forth,  and  what  do  the  precedents  teach,  in  relation  to  its  nature 
and  powers?  When  called  into  existence,  is  it  the  servant,  or 
the  master,  of  the  people,  by  whom  it  was  spoken  into  being  ? 
Whatever  be  its  relations  to  the  general  source  of  political 
power,  whether  those  of  subordination  or  of  independence,  what 
is  the  place  in  our  system,  what  are  the  relations  to  other  gov 
ernmental  agencies,  the  normal  functions  and  powers,  of  an 
institution,  that,  however  hedged  about  by  legal  restraints,  obvi 
ously  exhibits  more  features  that  are  menacing  to  republican 
liberty  than  any  other  in  our  whole  political  structure. 

§  3.  To  the  interest  attaching  to  the  Convention,  thus,  from 
abstract  considerations,  has  been  added  a  greater,  resulting  from 
the  connection  of  that  institution  with  recent  political  events. 
The  desolating  war  of  secession,  which  has  just  closed,  could 
hardly  have  been  inaugurated  but  for  the  use  made  by  the  re 
volting  faction  of  that  institution.  For  reasons,  which  will  be 
more  fully  explained  hereafter,  it  had  come  to  be  a  maxim  in  the 
practical  jurisprudence  of  the  United  States,  at  least  in  some 
of  the  States,  that  whatever  had  been  done  by  a  Constitutional 
Convention,  had  been  done  by  the  people,  "in  their  primary  and 
sovereign  capacity,"  and  was  therefore  absolutely  unquestion 
able,  on  legal  or  constitutional  grounds;  and  there  were 'not 


CONVENTIONS   AND    SECESSION.  3 

wanting  those  who  arrogated  to  that  ill-defined  assembly,  as  by 
an  extension  to  it  of  the  absurd  maxim,  that  "  the  voice  of  the 
people  is  the  voice  of  God,"  —  an  omnipotence  transcending  that 
higher  law,  to  which  ordinary  legislative  assemblies  acknowledge 
themselves  at  all  times  subject.  When  to  this,  which  is  deemed 
one  of  the  most  impudent  heresies  of  our  times,  was  added  its 
fellow,  the  dogma  of  State  sovereignty,  with  its  corollary,  the 
duty  of  State  allegiance,  the  transformation  of  a  loyal  commu 
nity  into  a  band  of  parricides  seeking  to  pull  down  the  edifice 
of  our  liberties,  need  be  but  the  work  of  a  day.  To  effect  it, 
there  was  needed  but  a  vote  of  a  few  conspirators,  sitting  as  a 
Constitutional  Convention,  pretending  to  utter  the  voice  of  the 
people,  and  refusing  to  submit  their  ordinances  to  the  test  of  a 
popular  vote,  under  the  false  plea  that  neither  the  theory  of  the 
Convention  system  nor  the  practice  of  the  fathers  made  such  a 
submission  necessary. 

This  picture  of  treachery  and  cunning,  playing  upon  popular 
ignorance  for  their  country's  ruin,  describes  with  precision  the 
historical  drama  that  culminated  in  the  secession  of  the  States 
of  the  South,  in  1860-1.  For,  surely,  it  is  not  too  much  to  say 
that  without  the  moral  effect  of  those  disorganizing  maxims, 
which  impressed  upon  Southern  consciences  the  duty  of  "  going 
with  one's  State,"  there  could  have  been  no  victories  won  by  the 
armies  of  treason,  even  had  an  outbreak  of  hostilities  been 
possible. 

Of  an  institution  to  which  are  conceded  a  position  so  impor 
tant  and  influence  so  decisive,  but  of  which  the  true  character 
and  relations  are  so  ill  understood  as  to  give  rise  to  wide-spread 
misapprehensions,  no  apology  is  needed  for  an  attempt  to  de 
velop  the  history  and  illustrate  the  true  nature  and  principles. 

§  4.  Before  entering  upon  the  task  indicated,  it  is  important 
to  clear  the  way  by  carefully  discriminating  the  institution  in 
question  from  others  known  under  the  same  general  designation 
of  Conventions,  but  differing  from  it  in  their  essential  principles 
and  functions.  To  do  this,  will  be  the  principal  object  of  this 
chapter. 

There  are  known  to  the  social  life  of  our  times,  in  America, 
four  species  of  Conventions,  namely  :  — 

I.  THE  SPONTANEOUS  CONVENTION,  or  PUBLIC  MEETING. 

IT.  THE  ORDINARY  LEGISLATIVE  CONVENTION,  or  GENERAL 
ASSEMBLY. 


4  SPONTANEOUS   CONVENTIONS. 

III.  THE  REVOLUTIONARY  CONVENTION. 

IV.  THE  CONSTITUTIONAL  CONVENTION. 
These  will  now  be  considered  in  their  order. 

§  5.  I.  By  SPONTANEOUS  CONVENTIONS,  I  mean  those  volun 
tary  assemblages  of  citizens,  which  characterize  free  communi 
ties  in  advanced  stages  of  civilization,  having  for  their  purpose 
agitation  or  conference  in  respect  of  their  industrial,  religious, 
political,  or  other  social  interests.  These  gatherings  are  at  once 
the  effects  and  the  causes  of  social  life  and  activity,  doing  for 
the  state  what  the  waves  do  for  the  sea :  they  prevent  stagna 
tion,  the  precursor  of  decay  and  death.  They  are  among  the 
most  efficient  manufactories  of  public  opinion ;  or,  rather,  they 
are  public  opinion  in  the  making,  —  public  opinion  fit  to  be  the 
basis  of  political  action,  because  sound  and  wise,  and  not  a 
mere  echo  of  party  cries  and  platforms.  Spontaneous  assem 
blages,  for  such  purposes,  of  the  masses  of  a  people,  betoken  a 
very  high  state  of  civilization,  or  instincts  that  are  sure  to  de 
velop  into  it.  To  be  possible,  in  perfection,  as  we  see  them 
amongst  us,  freedom  must  be  ripe  and  well-nigh  universal.  But 
when  rulers  and  social  institutions  do  not  favor  them,  to  theh 
occurrence  at  all  would  be  necessary  a  native  passion  for  liberty 
strong  enough  to  break  all  chains,  and  which  could  be  daunted 
by  no  perils.  We  are  prepared,  therefore,  to  believe  that  it  is 
only  our  own  race,  here  and  in  England,  that  has  thus  far  suc 
cessfully  vindicated  the  right  of  freely  assembling.  This  right 
was  asserted  in  England  as  early  as  the  twelfth  century,1  history 
telling  us  of  the  "  conventus  publicos  propria  authoritate"2  or 
voluntary  meetings  of  the  people,  under  the  protection  of  the 
common  law.  With  some  fluctuations,  as  the  work  of  social 
development  proceeded,  this  right  became  more  firmly  rooted  in 
the  parent  soil,  and  from  it  a  vigorous  scion  was  planted  in 
America,  which  has  exhibited  a  still  stronger  vitality,  and  now 
overspreads  the  land.3  A  common  and  most  invaluable  pro 
vision  of  our  constitutions,  State  and  Federal,  guarantees  to  the 
people  the  right  "  peaceably  to  assemble  and  petition  the  gov 
ernment  for  a  redress  of  grievances."  The  right,  thus  expressed, 

1  For  a  most  excellent  view  of  the  vicissitudes  of  this  right  under  the  English 
Constitution,  see  May's  Constitutional  History  of  England,  Vol.  II.  ch.  ix. 

2  Hinton's  Hist.  United  States,  Vol.  II.  pp.  324,  325. 

3  May's  Const.  Hist.  Eng.,  Vol.  II.  ch.  ix. 


LEGISLATIVE    CONVENTIONS.  5 

involves  those  of  discussing  all  measures  of  the  government; 
of  embodying  in  resolutions  or  remonstrances  the  general  senti 
ment  in  regard  to  the  policy  and  the  acts  of  the  public  author 
ities ;  and,  in  general,  of  exercising  the  privilege,  without  which 
freedom  is  impossible,  of  saying  and  hearing  whatsoever  one 
pleases,  being  at  the  same  time  responsible  for  abuses  of  that 
privilege.1  Such  is  the  Spontaneous  Convention  :  a  body  which 
meets  upon  the  call  of  any  individual ;  adjourns  when  it  pleases ; 
is  wholly  unofficial  ;  whose  determinations  have  no  efficacy 
whatever,  except  as  expressions  of  matured  or  maturing  opin 
ion ;  which  is  subject  to  no  laws  but  the  lex  parliamentarian  — 
common  sense  applied  to  the  action  of  numerous  assemblies, — 
and  the  law  which  enjoins  upon  all  men  to  keep  the  peace ; 
and  yet  a  body  which  is  quite  as  important  to  the  continued 
healthy  life  of  a  commonwealth  as  either  of  the  four  species  of 
Conventions  mentioned.2 

§  6.  II.  The  second  species  of  Conventions,  consisting  of  our 
GENERAL  ASSEMBLIES,  is  so  well  known,  that  I  need  not  dwell 
upon  it.  A  General  Assembly  is,  in  our  American  system,  a 
collection  of  representatives  of  the  people,  freely  elected  in  pur 
suance  of  the  Constitution,  and  empowered  to  enact  the  ordinary 
statute  law.  Deriving  its  existence  and  powers  from  the  people, 
through  the  Constitution,  it  can  do  nothing  except  by  the  author 
ity  contained  in  that  instrument,  and  is,  therefore,  official,  or  vi 
carious,  but  at  the  same  time  subaltern,  —  the  people  being  the 
principal  and  paramount  source  of  power.  Yet,  as  we  shall 
have  occasion  to  note  hereafter,  though  subordinate  in  relation 
to  the  people,  considered  as  the  creator  of  the  government  and 
Constitution,  the  legislature  is  nevertheless  prima  inter  pares, 
when  compared  with  other  departments  of  the  government ;  or, 
as  it  has  been  expressed  by  speculative  writers,  is  more  nearly 
sovereign  than  any  of  the  departments  which  are  ordinarily 
regarded  as  coordinate  with  it. 

1  "  This  is  true  liberty,  when  free-born  men 
Having  to  advise  the  public  may  speak  free, 
Which  he  who  can,  and  will,  deserves  high  praise  ; 
Who  neither  can  nor  will  may  hold  his  peace. 
What  can  be  juster  in  a  state  than  this  ?  " 

MILTON,  Areopagitica,  from  EURIPIDES. 

2  See  remarks  of  Dr.  Lieber  on  this  class  of  Conventions,  Political  Ethics, 
Part  II.  p.  467. 


6  REVOLUTIONARY  CONVENTIONS. 

§  7.  III.  The  third  species  of  Conventions,  as  its  name  im 
plies,  is  a  part  of  the  apparatus  of  revolution.  It  consists  of 
those  bodies  of  men  who,  in  times  of  political  crisis,  assume,  01 
have  cast  upon  them,  provisionally,  the  function  of  government. 
They  either  supplant  or  supplement  the  existing  governmental 
organization.  The  principal  characteristics  of  this  species  are, 
that  they  are  dehors  the  law ;  that  they  derive  their  powers, 
if  justifiable,  from  necessity,  —  the  necessity,  in  default  of  the 
regular  authorities,  of  protection  and  guidance  to  the  Common 
wealth,  —  or,  if  not  justifiable,  from  revolutionary  force  and  vio 
lence;  that  they  are  possessed  accordingly  to  an  indeterminate 
extent,  depending  on  the  circumstances  of  each  case,  of  govern 
mental  powers  ;  finally,  that  they  are  not  subaltern  or  ancillary  to 
any  other  institution  whatever,  but  lords  paramount  of  the  entire 
political  domain.  To  this  may  be  added,  that  they  are  of  no 
definite  numbers  or  organization,  comprising  sometimes  one 
and  sometimes  several  chambers,  and  composed  indifferently  of 
ex-officers  of  the  government  that  was,  of  persons  possessing 
neither  office  nor  the  qualifications  requisite  for  it,  nor  even  for 
the  elective  franchise,  or  of  a  mixture  of  all  of  these  together, 
as  chance  may  have  tossed  them  to  the  surface.  The  general 
purpose  of  the  Revolutionary  Convention,  moreover,  is  to  bridge 
over  a  chasm  between  two  orders  of  things :  an  order  that  has 
expired  or  been  extinguished ;  and  an  order  emerging,  under  the 
operation  of  existing  social  forces,  to  replace  it.  In  short,  a 
Revolutionary  Convention  is  simply  a  PROVISIONAL  GOVERN 
MENT. 

§  8.  Examples  of  the  Revolutionary  Convention  have  been 
numerous  in  the  political  history  of  the  world,  and  they  are  be 
coming  daily  more  so.  Among  the  most  famous  and,  for  our 
purpose,  the  most  important,  are  those  held  in  England  in  1660 
and  in  1689. 

In  those  cases  the  ruling  dynasty  having  abdicated  the  throne, 
or  been  expelled  from  it,  there  was  in  the  kingdom  not  only  no 
organized  government,  but  no  central  authority  practically  com 
petent  to  institute  one.  There  was,  it  is  true,  the  people  of 
England,  but  they  could  not  so  assemble  as  to  act  as  a  unit. 
The  parliament  had  ceased,  in  law,  to  exist  with  the  reign  of 
the  monarch  by  whose  writ  it  had  been  summoned,  and  no  new 
parliament  could  be  legally  called,  because  for  that  the  royal 


REVOLUTIONARY   CONVENTIONS   IN   ENGLAND.  7 

writ  was  absolutely  necessary.  In  these  alarming  crises,  and  as 
the  last  and  only  resource  for  temporary  government,  as  well  as 
for  providing  the  initial  points  of  new  organizations,  Conventions 
were  summoned.  •  That  called  in  1660  consisted  of  persons 
elected  by  the  several  constituencies  of  the  realm,  as  for  a  lawful 
parliament,  but  elected  illegally,  on  the  recommendation  of  a 
rump  of  the  old  Parliament,  which  had  been  dispersed  by  the 
army  under  Richard  Cromwell,  and,  for  that  reason,  as  Ma- 
caulay  observes,  more  accurately  described  as  a  Convention,  as 
having  been  called  without  the  royal  writ.1  The  Convention  of 
1689,  summoned  by  the  Prince  of  Orange,  afterwards  Wil 
liam  III.,  on  his  accession  by  force  to  the  throne  left  vacant  by 
James  II.,  consisted  of  persons  elected  in  a  similar  manner,  on 
the  call  of  the  usurping  prince,  issued  at  the  recommendation 
of  the  lords  spiritual  and  temporal  at  the  time  in  London, 
forming  a  quasi  House  of  Lords,  and  of  old  members  of  the 
House  of  Commons,  together  with  the  magistrates  of  the  city 
of  London,  acting  as  a  House  of  Commons.  This  Convention, 
also,  though  made  up  of  members  chosen  by  the  electors  for 
members  of  Parliament,  in  their  several  districts,  was  not  styled 
or  considered  a  Parliament,  because  called  by  a  person  not  con 
stitutionally  authorized,  acting  on  the  advice  of  an  assembly, 
which,  though  regarded  by  the  nation  with  a  large  measure  of 
the  respect  due  to  a  Parliament,  on  account  of  the  eminence 
and  former  official  station  of  its  members,  was  yet  without  a 
shadow  of  legal  authority.  The  proceeding  was  revolutionary, 
and  so  universally  admitted  to  be.  Such  were  the  two  great  Eng 
lish  Conventions,  the  models  after  which  most  subsequent  bodies 
of  the  same  class  have  been  formed  or  organized,  both  in  this 
country  and  in  Europe,  and  of  which,  as  we  shall  see,  our  Con 
stitutional  Conventions  are  special  adaptations  or  modifications. 
They  were  Provisional  Governments, —  the  only  governments 
England  had  during  the  periods  of  their  existence.  And  for  our 
purpose  it  will  be  interesting  to  note  further,  that  the  English 
Convention  of  1689,  having  taken  steps,  as  a  revolutionary  body, 
to  settle  the  succession  to  the  throne,  passed  a  bill  declaring 
itself  to  be  a  parliament,  and  from  that  time  acted  as  such  in 
conjunction  with  the  king  it  had  itself  called  to  the  throne.2 

1  Macaulay,  Hist.  Eng.,  Vol.  I.  ch.  i. 

2  Id.  Vol.  II.  ch.  xi. 


8  REVOLUTIONARY   CONVENTIONS   IN   AMERICA. 

§  9.  Interesting  examples  of  the  Revolutionary  Convention 
are  found  in  our  own  history.  The  first  occurred  in  New  Eng 
land  simultaneously  with  the  English  Convention  of  1689,  its 
assembling  being  the  result,  in  part,  of  the  same  causes  which 
led  to  that,  but,  in  part,  of  causes  local  to  New  England.  Both, 
however,  were  called  and  composed  in  a  similar  manner,  and 
organized  after  the  same  model,  that  of  1660,  convened  at  the 
time  of  the  Restoration. 

The  leading  facts  in  the  history  of  that  held  in«  New  England 
are  as  follows  :  — 

Whilst  the  tyrannical  acts  of  James  II.  were,  in  England,  ex 
citing  the  discontents  which  finally  led  to  his  abdication,  those 
of  Sir  Edmond  Andros,  the  Governor  of  Massachusetts,  were 
arousing  the  fiercest  opposition  in  New  England,  against  both 
the  colonial  and  the  imperial  administrations.  It  is  believed 
that  as  early  as  January,  1689,  before  the  news  of  the  landing 
of  the  Prince  of  Orange  in  England  had  reached  the  colony, 
arrangements  had  been  made  in  the  latter  to  rise  against  the 
unpopular  governor.  So  soon  as  that  news  arrived  an  outbreak 
occurred.  On  the  18th  of  April,  a  "  Declaration  of  the  Gentle 
men,  Merchants,  and  Inhabitants  of  Boston  and  the  country 
adjacent,"  was  published,  recounting  their  oppressions,  and  an 
nouncing  their  purpose  to  u  seize  upon  the  persons  of  those  few 
ill  men  which  have  been  (next  to  our  sins)  the  grand  authors  of 
our  miseries."  The  governor  and  the  magistrates  and  crown 
officers  adhering  to  him,  were  accordingly  thrown  into  prison  ; 
the  castle  was  occupied  by  colonial  militia,  and  an  English  frig 
ate,  lying  in  the  harbor,  was  forced  to  surrender.1  On  the  day 
following  this  revolutionary  outbreak,  the  leaders  in  the  move 
ment  with  twenty-two  others,  whom  they  now  associated,  formed 
themselves  into  a  Provisional  Government,  under  the  name  of  a 
"  Council  for  the  Safety  of  the  People  and  Conservation  of  the 
Peace."  Feeling  the  weakness  of  their  position,  since  they 
"  held  their  place  neither  by  deputation  from  the  sovereign  nor 
by  election  of  the  people,"  and  hesitating  to  set  up  again  the 
charter,  "  formally  condemned  by  the  King's  courts,"  "  they  de 
cided  to  call  a  Convention,  to  consist  of  two  delegates  from  each 
town  in  the  jurisdiction,  except  Boston,  which  was  to  send  four." 
This  Convention  met  on  the  9th  of  May,  and  attempted  to  put 
1  Palfrey's  Hist.  New  Eng.,  Vol.  III.  pp.  574-587. 


REVOLUTIONARY   CONVENTIONS   IN   AMERICA.  9 

the  charter  in  force,  but  meeting  with  opposition  from  the  mag 
istrates,  steps  were  taken  to  call  a  second  Convention  with 
"  express  instructions  from  their  towns."  Fifty-four  towns  sent 
delegates  to  this  latter  Convention,  the  large  majority  of  them 
with  instructions  to  insist  on  the  resumption  of  the  charter. 
After  two  days'  debate,  the  governor  and  magistrates,  chosen  at 
the  last  election  under  the  charter,  were  prevailed  upon  "to  assume 
the  trusts  committed  to  them,  and,  in  concert  with  the  delegates 
recently  elected,  to  form  a  General  Court,"  or  Legislature,  "  and 
administer  the  colony,  for  the  present,  according  to  the  ancient 
forms."  ! 

Two  days  after  this  revolutionary  government  was  established, 
a  ship  arrived  from  England  with  the  news  that  the  revolution 
there  had  succeeded,  and  bringing  orders  to  the  authorities  to 
proclaim  King  William  and  Q,ueen  Mary. 

The  Convention,  organized  as  above  stated,  by  which  this 
revolution  was  effected,  was  evidently  of  the  species  I  have  de 
nominated  Revolutionary  Conventions.  It  rested  for  its  warrant 
upon  necessity,  and  sought  its  ends  through  force.  It  was  a 
government,  intended  to  supplant  another  government,  and  not 
merely  a  political  institution  designed  to  be  subservient  to  a 
government  conceived  of  as  existing  in  full  activity. 

§  10.  Thus  the  Revolutionary  Convention  became  domesti 
cated  in  America.  Since  this  first  appearance,  there  have  been 
numerous  others,  a  few  during  the  colonial  condition,  but  most 
of  them  in  the  course  of  our  two  great  civil  revolutions,  those 
of  1776  and  1861.  As  we  shall  see  in  a  subsequent  chapter, 
most  of  the  organizations,  by  which,  under  the  names  of  "  Pro 
vincial  Conventions,"  or  "  Provincial  Congresses,"  the  first  of 
those  revolutions  was  consummated,  and  all  of  those  by  which 
the  late  secession  movement  was  carried  through,  were  strictly 
Revolutionary  Conventions. 

One  of  the  best  known  examples  of  the  Revolutionary  Con 
vention  is  the  National  Convention,  by  which  was  engineered 
the  bloody  overthrow  of  the  old  feudal  monarchy  of  France  at 
the  close  of  the  last  century.  Enough  has  been  said,  however, 
to  show  the  characteristic  features  of  an  institution,  too  often,  as 
we  shall  see,  confounded  with  the  Constitutional  Convention,  to 
which  I  now  pass. 

i  Palfrey's  Hist.  New  Eng.,  Vol.  III.  pp.  587-589. 


10  CONSTITUTIONAL   CONVENTIONS. 

§  11.  IV.  The  last  species  of  the  Convention  is  the  CONSTI 
TUTIONAL  CONVENTION.  It  differs  from  the  last  preceding,  in 
being,  as  its  name  implies,  constitutional;  not  simply  as  having 
for  its  object  the  framing  or  amending  of  Constitutions,  but  as 
being  within,  rather  than  without,  the  pale  of  the  fundamental 
law;  as  ancillary  and  subservient  and  not  hostile  and  paramount 
to  it.  This  species  of  Convention  sustains  an  official  relation  to 
the  state,  considered  as  a  political  organization.  It  is  charged 
with  a  definite,  and  not  a  discretionary  and  indeterminate,  func 
tion.  It  always  acts  under  a  commission,  for  a  purpose  ascer 
tained  and  limited  by  law  or  by  custom.  Its  principal  feature, 
as  contradistinguished  from  the  Revolutionary  Convention,  is, 
that  at  every  step  and  moment  of  its  existence,  it  is  subaltern,  — 
it  is  evoked  by  the  side  and  at  the  call  of  a  government  preexist 
ing  and  intended  to  survive  it,  for  the  purpose  of  administering 
to  its  special  needs.  It  never  supplants  the  existing  organization. 
It  never  governs.  Though  called  to  look  into  and  recommend 
improvements  in  the  fundamental  laws,  it  enacts  neither  them 
nor  the  statute  law ;  and  it  performs  no  act  of  administration. 
John  Randolph  said  in  the  Virginia  Convention  of  1829,  it  is 
called  as  counsel  to  the  people,  —  as  a  state  physician,  to  pro 
pose  remedies  for  the  state's  diseases.  But  it  is  a  physician 
whose  ministrations  are  confined  to  the  extraordinary  maladies 
requiring  a  fundamental  change  in  the  Constitution,  not  to  those 
constantly  recurring  but  petty  disorders  which  demand  the  inter 
position  of  the  ordinary  legislature. 

§  12.  It  is  apparent  that  institutions,  whose  definitions  thus 
mutually  exclude  each  other,  cannot  be  the  same,  however  simi- 
.ar  the  names  by  which  they  are  popularly  known.1 

But  it  may  happen,  (instances  will  be  hereafter  mentioned  in 
which  it  has  happened,)  that  the  Constitutional  Convention 
raay,  by  usurpation,  assume  one  or  more  of  the  powers  of  the 
Revolutionary  Convention ;  or  that  the  latter  may  exercise  those 
of  the  former.  How,  in  such  a  case,  is  the  usurping  body  to 
be  classed  ?  This  question  is  one  of  great  importance,  but  is 
susceptible  of  a  ready  answer. 

1  I  am  gratified  to  be  able  to  fortify  myself  in  the  distinctions  here  made  be 
tween  Constitutional  and  Revolutionary  Conventions,  by  the  authority  of  the 
South  Carolina  Court  of  Appeals,  in  cases  to  which,  when  the  text  was  written, 
my  attention  had  not  been  drawn.  See  opinion  of  Justice  O'Neall  in  the  so- 
called  Allegiance  Cases,  2  Hill's  S.  C.  R.  222. 


HISTORICAL   SUMMARY.  11 

A  Revolutionary  Convention,  because  it  is,  ex  vi  termini,  un 
limited,  in  respect  of  both  the  kind  and  the  degree  of  its  powers, 
may  take  upon  itself  the  functions  of  either  of  the  three  lower 
species  of  conventions,  under  the  same  warrant  by  which  it  jus 
tifies  the  assumption  of  revolutionary  powers.  A  body  which 
can,  violently  and  without  law,  uproot  all  existing  institutions, 
can  clearly  do  the  lesser  act  of  digesting,  or  even  of  enacting, 
amendments  to  the  Constitution.  But,  in  doing  so,  it  does  not 
change  its  original  character  ;  it  is  still  a  Revolutionary  Conven 
tion,  and  all  its  acts  must  stand  on  the  footing  of  those  which 
involve  the  widest  stretch  of  power. 

But  the  converse  of  this  proposition  does  not  hold  true.  If  a 
Constitutional  Convention  step  outside  the  circle  of  the  law,  it 
does  not  continue  to  be  a  Constitutional  Convention,  but,  so 
far,  becomes  that  whose  powers  or  methods  it  assumes,  —  a 
Revolutionary  Convention.  It  leaves  the  domain  of  law,  which 
is  one  of  specified  and  restricted  powers,  and  enters  upon  that 
of  arbitrary  discretion,  within  which  law  is  silent,  and  where  he 
is  master  who  wields  the  greater  force. 

Whenever,  therefore,  a  Constitutional  Convention,  appointed, 
as  we  shall  see  it  usually  is,  for  a  specific  duty  under  the  Con 
stitution,  presumes  to  overpass  the  limits  imposed  by  its  com 
mission,  by  custom,  or  by  the  maxims  of  political  prudence, 
and  to  do  acts  requiring  the  exercise  of  a  revolutionary  discre 
tion^  it  ceases  to  be  a  Constitutional,  and  becomes,  in  the  eye  of 
the  law,  ab  initio^  a  Revolutionary  Convention. 

§  13.  If  I  mistake  not,  in  the  confounding  of  the  distinctions 
noted  in  the  preceding  sections  between  the  Constitutional  and 
the  Revolutionary  Convention,  will  be  found  the  origin  of  the 
most  fatal  misconceptions  attaching  to  any  part  of  our  political 
system.  To  show  how  those  misconceptions  arise,  as  well  as  to 
obviate  their  effects  by  bringing  into  as  clear  a  light  as  possible 
the  distinctions  indicated,  it  is  necessary  to  inquire  into  the 
genesis  and  historical  development  of  the  Constitutional  Con 
vention. 

The  history  of  that  institution  may  be  summed  up  in  a  few 
words ;  it  is  an  adaptation  to  the  exigencies  of  constitutional 
life  and  government,  in  the  United  States,  of  the  Revolutionary 
Convention,  as  derived  from  our  English  ancestors  of  1660  and 
1689.  How  the  transformation  occurred,  by  which  the  wild 


12  HISTORICAL   SUMMARY. 

scion  from  the  woods  was  domesticated  in  the  garden  of  the 
Constitution  and  made  to  subserve  the  purposes  of  regulated 
life,  will  now  be  shown. 

When  the  American  colonies  assumed  the  position  of  in 
dependent  States,  the  revolt,  by  which  the  change  in  their 
political  relations  was  accomplished,  was  engineered  by  revo 
lutionary  conventions  in  the  several  States,  patterned  after  those 
described  in  the  previous  sections  of  this  chapter.  In  other 
words,  our  fathers  borrowed  the  revolutionary  machinery  which 
history  showed  to  have  been  so  efficacious  in  the  time  of 
Charles  II.  and  James  II.,  as  they  also,  in  general,  inherited  the 
political  principles  and  the  forms  of  administration  of  the 
mother-country.  Thus,  the  institution  was  planted  upon  Amer 
ican  soil. 

The  next  step,  if  less  obvious,  was  not  less  important.  The 
Revolution  accomplished,  when  our  fathers  came  to  embody  the 
rights  achieved  by  it  in  institutions  independent  of  the  crown, 
two  circumstances  led  them  to  establish  governments  limited  to 
the  exercise  of  granted  powers.  The  first  of  these  was  affection 
for  their  charters,  so  long,  in  many  of  the  colonies,  the  most 
effective  barriers  against  parliamentary  oppression  ;  the  second, 
apprehension  of  an  American  monarchy,  —  a  mere  phantom,  as 
we  now  know,  but  a  phantom  which,  at  that  time,  to  many 
imaginations,  threatened  immediate  and  serious  evils.  How 
ever  this  may  be,  the  tendency  indicated  was  universal,  and 
has  given  character  to  our  political  institutions  to  this  day. 

But  it  was  not  forgotten  that  the  colonial  charters  were  mere 
royal  grants,  and  that  the  tenures  by  which  they  were  held  had 
sometimes  been  very  insecure.  Here,  it  is  true,  there  was  no 
sovereign  authority  but  the  people,  represented  chiefly  by  the 
General  Assemblies,  a  circumstance  which  might  be  thought  to 
render  the  wrongful  abrogation  of  their  charters  improbable, 
if  not  impossible.  But  as  the  worst  oppressions,  experienced 
by  them  as  colonies,  had  been  at  the  hands  of  Parliament,  —  a 
popular  assembly,  in  theory,  if  not  in  fact,  representing  the 
Commons  of  the  whole  empire,  —  might  not  their  own  assem 
blies  in  time  become  their  oppressors,  especially  if  allowed  to 
retain  not  only  the  power  of  ordinary  legislation,  but  that  tran 
scendent  one  exercised  by  the  English  Parliament,  of  framing 
the  organic  law  ? 


HISTORICAL   SUMMARY.  13 

This  apprehension,  nearly  universal  at  the  time  of  our  separa 
tion,  led  the  statesmen  of  the  Revolution  to  seek  some  other 
depositary  of  the  latter  power.  This  they  found  in  Conventions, 
called  by  the  governments  in  force  in  the  several  colonies, 
modelled,  in  point  of  structure  and  organization,  after  the  Rev 
olutionary  Conventions,  with  which  they  were  so  familiar,  but 
charged  with  the  single  function  of  maturing  the  charters,  or 
Constitutions,  rendered  necessary  by  the  altered  condition  of 
their  affairs.  As  thus  used,  the  Convention  ceased  to  be  the 
revolutionary  body  which  had  alone  been  known  by  that  name 
in  former  times.  But  it  was  the  same  institution,  for  our 
fathers  knew  no  other,  but  the  same  with  important  differences. 
Brought  into  operation  as  a  regular  constitutional  agency,  in  aid 
of  a  system  established,  it  was  shorn  of  the  extraordinary 
powers  possessed  by  it  when  it  was  itself  the  government ;  the 
government,  too,  of  a  state  in  a  time  of  social  upheaval  and 
transition,  in  which  the  laws  were  silent,  and  those  intrusted 
with  the  public  administration  were  restrained  by  no  law  but 
that  of  the  strongest. 

§  14.  It  is  not  my  purpose  here  to  trace  at  any  great  length 
the  limits  of  this  new  development.  It  is  enough  to  observe, 
that  the  change  began  with  the  Revolution,  of  the  fruits  of 
which  it  constituted  so  valuable  and  characteristic  a  part.  It 
\vas  not  accomplished,  however,  in  a  moment,  nor  can  it  be  said 
to  be  even  yet  completely  consummated,  since  there  are  doubts 
and  misconceptions  widely  prevalent  regarding  it,  which  are  in 
consistent  with  the  idea  of  a  perfect  development  of  the  new 
institution.  An  important  step  in  that  development  has  only 
just  now  been  taken,  in  the  case  of  the  Lecompton  Convention, 
so-called,  of  the  Territory  of  Kansas.  In  the  discussion  of  that 
case,  in  1857—9,  the  question,  whether  or  not  a  Constitutional 
Convention  has  power  either  to  refuse  to  submit  the  fruit  of 
its  deliberations  to  those  who  are  to  be  governed  by  it,  or  to 
submit  it  to  them  in  such  a  way  as  to  deprive  them  sub 
stantially  of  a  voice  in  determining  its  form  and  character,  was 
for  the  first  time  definitively  settled.  The  same  process  will 
doubtless  continue  in  the  future. 

When  the  first  Constitutions  were  framed  for  the  colonies,  in 
1776,  the  limits  and  distinctions,  above  explained,  were  far  less 
understood  than  they  have  since  become.  In  a  subsequent 


14  MISCONCEPTIONS  REGARDING   CONVENTIONS. 

chapter  it  will  be  seen  that  the  most  important  principle  in  the 
Convention  system  —  that  which  requires  the  Constitutional  Con 
vention  to  be  kept  totally  disconnected,  as  well  in  theory  as  in 
practice,  from  the  Revolutionary  Convention  —  was  sometimes, 
in  those  early  days,  disregarded.  The  statesmen  of  the  Revolu 
tionary  period,  though  familiar  with  the  principles  and,  to  some 
extent,  with  the  administration  of  the  English  government,  were 
necessarily  less  so  with  those  that  were  springing  up  about 
them  ;  and  of  the  features  indispensable  to  be  impressed  upon  an 
old  institution  coming  now  to  be  employed  for  a  new  constitu 
tional  purpose,  so  as  to  render  its  working  easy  and  safe,  they 
were  wholly  ignorant.  Accordingly,  in  their  first  essays  at  con 
stitution  making,  partly  from  this  ignorance  and  partly  from  the 
urgent  needs  of  the  time,  they  allowed  the  functions  of  the  Con 
stitutional  Convention,  in  some  cases,  to  be  exercised  by  its 
revolutionary  prototype,  —  the  Revolutionary  Conventions  as 
suming  the  duty,  with  others,  of  framing  their  first  constitutions. 

But,  if  the  necessity  of  keeping  the  two  institutions  distinct 
was  not  at  first  generally  apparent,  it  required  but  little  experi 
ence  of  actual  administration  to  convince  men  as  intelligent  and 
jealous  of  their  liberties  as  our  fathers,  that  if,  to  the  function 
of  suggesting,  the  Constitutional  Conventions,  becoming  so 
common  amongst  them,  should  join  that  of  establishing,  their 
Constitutions  of  government,  and  not  only  so,  but  of  framing 
and  administering  the  ordinary  laws  of  their  respective  States,  as 
being  but  the  less  involved  in  the  greater  power,  there  would  be 
practically  no  security  at  all  for  their  liberties.  Accordingly,  we 
find  that  the  cases  in  which  the  incompatible  functions  indi 
cated  were  actually  accumulated  in  the  same  hands  were  con 
fined  to  the  first  years  of  the  war,  when  the  idea  had  not  been 
dissipated  that  a  satisfactory  peace  with  England  would  soon 
make  unnecessary  the  continuance  of  the  State  organizations, 
thus  far  regarded  as  temporary  establishments  for  the  govern 
ment  of  the  colonies,  whilst  the  contest  with  England  should 
continue. 

§  15.  We  are  to  conceive  of  the  Constitutional  Convention, 
then,  as  an  adaptation  to  constitutional  uses  of  an  institution 
originally  revolutionary ;  that  is,  whose  methods  and  principles 
of  action,  as  well  as  whose  purposes,  were  alien  and  hostile  to 
established  laws  and  Constitutions.  And  this  is  the  real  occa- 


MISCONCEPTIONS   REGARDING    CONVENTIONS.  15 

sion  of  most  of  the  misconceptions  prevalent  as  to  its  true  char 
acter.  Thus,  the  notion  has  been  common  among  even  the 
well-informed,  that  the  Constitutional  Convention  is  above  the 
law,  the  Constitution,  and  the  government,  all  of  which  it  may, 
therefore,  it  is  conceived,  respect  and  obey  or  not  at  its  discre 
tion  ;  that  it  is  possessed,  in  short,  of  the  powers  of  its  revolu 
tionary  namesake. 

The  origin  of  this  misconception  is  ignorance  of  the  simple 
facts  of  our  constitutional  history  above  detailed,  and  of  the 
principles  of  our  political  system.  To  determine  the  rightful 
powers  of  the  institution  as  adapted  to  our  constitutional  uses, 
men  point  to  the  English  Conventions  of  1660  and  1689,  to  that 
of  the  latter  year  in  Massachusetts,  to  those  by  which  our  first 
Revolution  was,  in  the  various  American  colonies,  begun  and 
consummated.  Those  bodies,  which,  unquestionably,  in  many 
cases,  framed  Constitutions,  were  known  to  be  possessed  of  other 
and  extraordinary  powers.  They  were  called  by  high-sounding 
titles  :  "  The  Estates  of  the  Realm  ;  "  «  The  People  in  their  Pri 
mary  and  Sovereign  Capacity ;  "  —  phrases,  in  whose  indefinite- 
ness  could  be  discovered,  or  concealed,  all  possible  attributions 
of  power.  The  error  has  received  additional  currency  from  the 
extraordinary  proceedings  of  the  Conventions  held  in  France, 
particularly  that  which  piloted  her  upon  the  breakers  in  the 
closing  years  of  the  last  century.  Was  not  the  Convention  of 
our  first  ally,  it  is  asked,  which  uprooted  the  monarchy  and 
laid  the  foundations  of  the  French  Republic,  an  institution  bor 
rowed  from  us, —  an  institution,  therefore,  which  has  not  here 
developed  the  extraordinary  powers,  exhibited  by  it  in  France, 
only  because  our  occasions  have  never  called  them  forth  ?  The 
upshot  of  this  reasoning  is,  the  establishment  of  the  axiom, 
that  a  Constitutional  Convention  wields  all  the  powers,  which, 
by  the  law  of  nature  or  of  nations,  are  conceded  to  exist  in 
the  sovereign  for  which  it  acts  —  a  degree  of  omnipotence  to 
which,  in  a  government  of  law,  there  can  be  found  no  parallel, 
and  which  is  inconsistent  with  the  fundamental  principles  of 
American  liberty. 

§  16.  The  Constitutional  Convention,  then,  I  consider  as  an 
exotic,  domesticated  in  our  political  system,  but  in  the  process 
so  transformed  as  to  have  become  an  essentially  different  insti 
tution  from  what  it  was  as  a  Revolutionary  Convention.  In 


16  FUNDAMENTAL   CONCEPTIONS. 

the  following  pages  an  attempt  will  be  made  to  vindicate  the 
accuracy  of  that  view  by  inquiring  into  the  institution  in  all 
its  relations,  as  well  to  the  people  as  to  the  government  in  its 
various  departments,  connecting  with  the  theoretical  considera 
tions  necessarily  involved  in  the  discussion,  historical  sketches 
of  such  Conventions  as  have  thus  far  been  held  in  the  United 
States. 

§  17.  Before  proceeding  to  this  inquiry,  it  will  be  useful  to 
develop,  with  such  completeness  as  space  will  allow,  two  funda 
mental  conceptions,  to  which  reference  will  be  constantly  made 
in  the  following  pages,  —  that  of  Sovereignty,  or  of  a  sovereign 
Body  ;  and  that  of  a  Constitution,  or  Law  fundamental,  as  dis 
tinguished  from  an  ordinary  municipal  law. 

Without  an  accurate  comprehension  of  these  two  subjects,  it 
will  be  impossible  to  arrive  at  the  truth  in  relation  to  the  institu 
tion  we  are  considering,  since  the  first,  being  the  source  and 
foundation  of  all  just  authority  in  the  state,1  determines  its 
powers ;  and  the  second,  being  the  object,  to  create  which  or  to 
aid  in  creating  which  that  institution  is  employed,  ascertains  the 
field  of  its  operations.  To  these  conceptions,  therefore,  will  be 
devoted  the  two  following  chapters. 

1  The  word  state  is  used  in  this  treatise,  first,  generally,  to  denote  any  organ 
ized  political  community  ;  that  is,  synonymously  with  commonwealth ;  and, 
secondly,  in  a  limited  sense,  to  designate  a  member  of  the  American  Union. 
When  employed  in  the  former  sense,  it  begins  with  a  small  letter,  and  when  in 
the  latter,  with  a  capital. 


CHAPTER   II. 

§  18.  BY  the  term  sovereign  is  meant  the  person  or  body  of 
persons  in  a  state,  to  whom  there  is,  politically,  no  superior.1 
Sovereignty  is  the  state  or  condition  of  being  a  sovereign  —  the 
possession  of  sovereign  powers.2 

§  19.  The  marks  by  which  the  possession  of  sovereignty  may 
be  determined,  in  particular  cases,  have  been  thus  described  by 
Mr.  John  Austin,  one  of  the  most  eminent  authorities  upon  the 
philosophy  of  jurisprudence:  — 

"  The  superiority,"  says  he,  "  which  is  styled  sovereignty,  and 
the  independent  political  society  which  sovereignty  implies,  is 
distinguished  from  other  superiority,  and  from  other  society,  by 
the  following  marks  or  characters:  — 

1  The  term  sovereign  is  derived  from  a  low-Latin  word,  supranus,  formed  from 
supra,  by  the  following  transformations  :  soprano,  sovrano,  souverain,  sovereign. 
Ducange,  in  verb.     Milton  spells  the  word  sovran.     Richardson's  Dictionary,  in 
verb. 

The  meaning  of  the  term  sovereignty,  then,  is  simply  superiority ;  but  it  is, 
humanly  speaking,  an  absolute  superiority.  Rutherforth,  in  his  Institutes  of 
Natural  Law,  contends,  not  without  reason,  that  when  we  speak  of  relative 
superiority,  we  use  the  word  supremacy.  He  says:  —  "  Whenever  we  speak  of 
sovereign  power  or  of  supreme  power,  we  are  led  into  some  mistakes  by  using 
these  words  indiscriminately.  When  we  call  any  power  supreme,  the  expression 
seems  to  be  relative  to  some  other  subordinate  powers ;  to  call  any  power  the 
highest  of  all  is  not  very  intelligible,  if  there  are  no  other  powers  below  it. 
Sovereign  power  is  also  a  relative  term  ;  but  then  it  has  not  a  necessary  relation 
to  subordinate  powers.  To  call  any  power  by  the  name  of  sovereign  power, 
does  not  necessarily  imply  that  there  are  any  other  powers  in  subordination  to 
it.  Whatever  power  is  independent,  so  as  not  to  be  subject  to  any  other  power, 
though  it  has  in  the  mean  time  no  other  power  subject  to  itself,  may  with  pro 
priety  enough  be  called  by  this  name.  In  short,  that  power  may  well  be  called 
sovereign  to  which  none  is  superior ;  whereas  none  can  be  called  supreme, 
unless  there  are  others  inferior  to  it."  Book  H.  ch.  iv.  pp.  75,  76. 

2  Dr.  Lieber,  in  his  Political  Ethics,  defines  sovereignty  from  the  point  of 
view  of  its  moral  limitations,  thus  :  "  The  necessary  existence  of  the  state,  and 
that  right  and  power  which  necessarily  flow  from  it,  is  sovereignty." 

2 


18  MARKS   OF   SOVEREIGNTY. 

"  1.  The  bulk  of  the  given  society  are  in  a  habit  of  obedience 
or  submission  to  a  determinate  and  common  superior,  let  that 
common  superior  be  a  certain  individual  person,  or  a  certain 
body  or  aggregate  of  individual  persons. 

"2.  That  certain  individual,  or  that  certain  body  of  individ 
uals,  is  not  in  a  habit  of  obedience  to  a  determinate  human 
superior 

"  Or,  the  notions  of  sovereignty  and  independent  political  soci 
ety  may  be  expressed  concisely  thus  :  If  a  determinate  human 
superior,  not  in  a  habit  of  obedience  to  a  like  superior,  receive 
habitual  obedience  from  the  bulk  of  a  given  society,  that  deter 
minate  superior  is  sovereign  in  that  society,  and  the  society  (in 
cluding  the  superior)  is  a  society  political  and  independent."  l 

§  20.  It  is  impossible  to  describe  sovereignty  with  greater 
completeness  or  felicity,  but  I  shall  venture  to  add  to  the  marks 
given  by  Mr.  Austin  two  not  unrelated  to  them,  expressed  in 
terms  more  familiar  to  the  jurisprudence  of  the  United  States. 
They  are  these  :  — 

1.  Whenever,  within  the  same  territorial  limits,  there  exist  two 
political   organizations,  or  two    political  entities,  so  related  to 
each  other  that  one  may  determine  its  own  powers  and  juris 
diction,  and,  in  so  doing,  limit,  enlarge,  or  abolish  those  of  the 
other,  being  at  the   same   time  itself,  not  only  subject  to   no 
reciprocal  modification,  but  independent  of  all  the  world,  the 
former  is  a  sovereign  organization  or  entity,  and  the  latter  is 
not. 

2.  Whatever,  historically  considered,  may  have  been  the  orig 
inal  relations  of  two  political  bodies  at  present  distinguished 
from  each  other  by  the  mark  indicated,  the  powers  wielded  by 
the  inferior  must  be  conceived  as  delegated  by  the  superior,  since 
at  no  moment  would  its  possession  of  them  continue  without 
the  consent  of  that  superior. 

This  follows  from  the  definition  of  sovereignty,  and  will  aid 
us  further  on,  when  we  come  to  consider  the  question  of  sover 
eignty  in  the  United  States. 

§  21.  With  the  abstract  question  of  the  ground  upon  which 
the  right  of  sovereignty  rests,  I  shall  not  concern  myself.2 

1  Austin,    The  Province  of  Jurisprudence  Determined,  Vol.  I.  p.  1 70. 

2  The  principal  theories  as  to  the  ground  of  sovereignty,  and,  consequently, 
as  to  the  ultimate  foundation  of  civil  government,  are,  that  it  rests,  first,  upon 


WHERE   SOVEREIGNTY  RESIDES.  19 

A  question  of  less  difficulty,  and,  for  my  purpose,  of  greater 
practical  importance,  is,  where' — theoretically  considered,  and 
without  reference  to  particular  states — does  sovereignty  reside, 
and  what  are  its  attributes  ? 

To  the  first  branch  of  the  question,  the  answer  is :  sover 
eignty  resides  in  the  society  or  body  politic ;  in  the  corporate  unit 
resulting  from  the  organization  of  many  into  one,  and  not  in 

Divine  appointment ;  secondly,  upon  compact ;  and,  thirdly,  upon  the  development 
of  natural  forces,  according  to  natural  laws. 

In  reference  to  these  theories,  I  shall  only  observe,  that,  rightly  considered, 
they  and  the  numerous  modifications  of  them,  which  figure  in  the  books,  seem 
to  me  to  be  expressions  of  the  same  truth,  seen  from  different  points  of  view, 
and  naturally  seen  with  different  degrees  of  clearness  and  completeness.  Thus, 
if  the  phenomena  of  civil  society  be  viewed  with  particular  reference  to  Divine 
Providence,  whose  interposition,  whether  special  or  general,  through  the  oper 
ation  of  natural  laws,  is  unquestionably  a  principal,  if  not  the  exclusive  compo 
nent  of  the  forces  whose  resultant  is  the  state,  the  ground  of  those  phenomena 
might,  not  without  apparent  reason,  be  regarded  as  the  Divine  will.  Let  the 
attention,  on  the  other  hand,  be  directed  chiefly  to  the  fact,  apparent  in  any 
political  society  during  even  the  stormiest  periods  of  its  history,  that  the  bulk, 
the  majority  in  weight  and  influence,  if  not  in  numbers,  of  its  members,  acqui 
esce  in,  (see  post,  §  65,)  perhaps  have  formally  assented  to,  the  forms  of  its 
social  and  political  organization,  and  it  would  seem  proper  to  refer  those  forms 
to  a  compact  between  the  individuals  composing  it.  But  if,  beside  the  Divine 
will,  and  beside  the  apparent  consent  or  agreement  of  those  who  constitute  the 
bulk  of  a  society,  account  be  taken,  as  it  certainly  ought,  of  the  will  of  men, 
often  perverse,  always  unstable,  and  which,  if  a  will  at  all,  whatever  theologians 
may  say,  is  not  determined  by  the  Divine  will,  but  is  independent  of  it ;  the 
will  of  men,  too,  not  comprised  in  that  bulk  of  the  society  which  seems  to  organ 
ize  political  institutions  by  compact,  but  constituting  a  protesting  or  rebellious 
minority,  by  whose  hostile  pressure  or  assault  those  institutions  are  modified, 
though  not  determined  ;  and  if,  further,  account  be  taken  of  the  natural  or  his 
torical  conditions  of  soil,  climate,  laws,  degree  of  civilization,  habits,  passions, 
aversions,  religion,  and  race,  all  of  which  are  constantly  appearing  elements  of 
the  social  problem  in  every  state,  whatever  its  rank  in  the  scale  of  civilization  ; 
it  would  seem  reasonable  to  ground  sovereignty  and  civil  government  upon  the 
development  of  natural  forces,  according  to  natural  laws.  By  this  view,  the 
problems  of  political  philosophy  are  problems  of  vital  dynamics ;  the  state  is 
an  object  of  natural  history,  like  a  coral  reef,  a  swarm  of  bees,  or  a  family  of 
beavers  ;  a  composite  animal,  a  union  of  many  persons  into  one,  but  a  vital 
union,  not  a  mere  aggregation  by  accident  or  choice  of  individuals  by  nature 
independent  of  each  other  ;  a  union  dating  from  the  creation  of  the  parts,  and, 
therefore,  under  some  form  and  conditions,  a  necessary  union.  The  way  in 
which  such  a  composite  being  achieves  what  measure  it  does  of  social  life  and 
development,  under  the  combined  operation  of  all  the  social  forces  indicated, 
together  with  the  modes  of  operation  of  these  forces,  are  the  constitution  and 
laws  of  that  being. 


20  ATTRIBUTES   OP   SOVEREIGNTY. 

the  individuals  constituting  such  unit,  nor  in  any  number  of 
them  as  such,  nor  even  in  all  of  them,  except  as  organized  into 
a  body  politic  and  acting  as  such.  Thus,  Justice  Iredell,  in  a 
case  in  the  Supreme  Court  of  the  United  States,  decided  in 
1795,  after  describing  the  formation  of  our  governments,  said : 
"  In  such  governments,  the  sovereignty  resides  in  the  great  body 
of  the  people,  but  it  resides  in  them  not  as  so  many  distinct 
individuals,  but  in  their  political  capacity  only."  l 

§  22.  As  to  the  second  branch  of  the  question,  relating  to  the 
attributes  of  sovereignty,  little  need  be  said.  The  attributes  of 
sovereignty,  mentioning  such  only  as  tend  to  throw  light  upon 
the  problems  discussed  in  this  work,  are  as  follows :  — 

1.  A  true  sovereign  can  never  voluntarily  abdicate  or  divest 
itself  of  the  sovereignty.      A  sovereign   political  society  may 
cease  longer  to  exist  as  such,  —  may  become  merged  in  another 
society,  and  so  lose  its  sovereignty ;  but  so  long  as  it  remains 
an  independent  political  society,  it  must  possess  and  exercise 
sovereign  powers. 

2.  Sovereignty  is  indivisible.     To  establish  this,  we  need  but 
to  try  to  conceive  of  the  contrary.     If  the  sovereignty  of  a  state 
were  divided  among  its  citizens,  whether  a  few  or  all  of  them, 
the  recipients  of  it  would  each  be  possessed  of  equal  sovereign 
power,  and,  there  being  no  common  superior,  government  would 
be  impossible.2 

3.  Sovereignty  is  indefeasible ;  that  is,  it  is  incapable,  by  any 
juggle  based  upon  legal  analogies,  of  being  defeated  or  abro 
gated.     As  expressed  by  James  Wilson,  in  the  Convention  of 
Pennsylvania  to  adopt  the  Federal  Constitution,  "  sovereignty  is 
and  remains  in  the  people." 

4.  Sovereignty  is  inalienable ;  that  is,  "  society  never  can  dele 
gate  or  pledge  away  sovereignty."  3     "  Being  inherent,  naturally 

*  Penhallow  v.  Doane's  Admrs.,  3  Dallas'  R.  54.  See,  also,  to  the  same  point, 
the  testimony  of  Judge  Tucker,  in  Tuck.  Blackst.  Com.,  Vol.  I.  Appendix,  p.  9, 
ed.  1803. 

•  So,  also,  Dr.  Brownson  :  "  The  political  sovereignty,  under  the  law  of  nature, 
attaches  to  the  people,  not  individually,  but  collectively,  as  civil  and  political 
society.  It  is  vested  in  the  political  community  or  nation,  not  in  an  individual 
or  family,  or  a  class." —  The  Amer.  Republic,  p.  135. 

2  For  a  statement  of  the  absurd  consequences  of  a  divisible  sovereignty,  see 
Lieber's  Political  Ethics,  Vol.  I.  p.  252.     See  also  Brownson's  American  Re 
public,  pp.  192-196. 

3  Lieber's  Polit.  Ethics,  Vol.  I.  p.  251. 


MODES   OF   MANIFESTATION    OF   SOVEREIGNTY.  21 

and  necessarily,  in  the  state,  it  cannot  pass  from  it  so  long  as 
the  latter  exists."  l 

By  this  is  not  meant  that  the  exercise  of  sovereignty  may  not 
be  delegated.  Such  a  delegation  is  of  the  essence  of  govern 
ment.  But  to  delegate  to  another  the  exercise  of  a  power 
within  prescribed  limits,  or  for  a  determinate  time  or  purpose,  is 
no  alienation  of  it,  but  supposes  it  to  be  still  virtually  in  the 
original  hand. 

5.  Sovereignty,  as  we  have  said,  is  indivisible,  but  the  sover 
eign  body  itself  is  not.     The  latter  may  be  divided  into  several 
sovereigns,  each  distinct  and  independent.     To  be  convinced  of 
this,  we  have  but  to  imagine  a  body  politic  split  by  overwhelm 
ing  force  into  several  parts.     The  fragments  survive  the  shock, 
become  new   independent   societies,  and  run   separate  careers. 
Each  is  a  sovereign  society.     An  instance  of  such  a  disruption 
occurred  in  the  British  empire  at  the  time  of  the   American 
Revolution.      Previously  to  our  Declaration  of   Independence, 
England  was,  as  she  has  ever  since  continued  to  be,  a  sovereign 
society,  but  of  that  England  the  colonies  formed  a  part.     When 
the  connection  was  severed,  the  "  United   Colonies,"  by  which 
the  separation  was  effected,  became  a  new  political  society,  in 
dependent  of  the  crown,  and,  as  such,  invested  with  all  sovereign 
rights. 

6.  Finally,  two  or  more  sovereign  bodies  may  by  force  or  by 
consent  become  united   and  form  a  new  political  society.     In 
such  a  case,  sovereignty  forsakes  the  composing  units  and  be 
comes'  inherent  in  the  resulting  aggregate.     To  have  that  effect, 
however,  it  is  doubtless  necessary  that  the  union  should  not  be  a 
mere  juxtaposition,  but  a  fusion,  of  the  constituent  elements. 

§  23.  The  characteristic  marks  and  attributes  of  sovereignty 
being  comprehended,  it  is  important  to  ascertain  the  various 
modes  of  its  manifestation. 

Sovereignty  manifests  itself  in  two  ways  :  first,  indirectly, 
through  individuals,  acting  as  the  agents  or  representatives  of 
the  sovereign,  and  constituting  the  civil  government ;  and,  sec 
ondly,  directly,  by  organic  movements  of  the  political  society 
itself,  without  the  ministry  of  agents ;  the  movements  referred 
to  exhibiting  themselves  either  in  those  social  agitations,  of 
which  the  resultant  is  known  as  public  opinion,  that  vis  a  tergo 
i  Lieber's  Polit.  Ethics,  Vol.  I.  p.  250. 


22  DIRECT   MANIFESTATION   OF   SOVEREIGNTY. 

in  all  free  commonwealths,  by  which  the  machinery  of  govern 
ment  is  put  and  kept  in  orderly  motion ;  or  in  manifestations  of 
original  power,  by  which  political  or  social  changes  are  achieved 
irregularly,  under  the  operation  of  forces  wielded  by  the  body 
politic  itself  immediately.1 

Of  the  two  direct  manifestations  of  sovereignty  indicated, 
public  opinion  is  by  far  the  most  important,  the  most  constant, 
and  the  least  dangerous.  By  it  is  meant,  not  the  opinion  of  this 
or  that  man  or  class,  but  the  opinion  of  the  body  politic,  which 
is  the  resultant  of  the  concurring,  divergent,  and  clashing  opin 
ions  of  the  whole  body  of  the  citizens.  The  object  upon  which 
this  important  social  force  expends  itself  is  either  the  govern 
ment,  considered  as  the  servant  of  the  sovereign,  or  the  society 
employing  it,  which  is  the  sovereign  itself.  But  the  peculiarity 
of  it  is,  that  while  constitutions  and  laws  make  no  allusion  to 
public  opinion  as  a  legitimate  political  force,  all  administrative 
agencies  bow  before  it  as  though  it  were  true,  as  is  often 
affirmed,  that  "  the  voice  of  the  people  is  the  voice  of  God." 

The  other  direct  manifestation  of  sovereignty,  the  irregular 
exhibition  of  power,  is  witnessed  when  society,  by  a  general 
and  irresistible  impulse,  does  an  act  because  it  will  do  it,  taking 
less  account  of  its  lawfulness  than  of  its  necessity  or  desirable 
ness,  though  often,  for  example's  sake,  covering  its  contempt  of 
legal  forms  with  a  thin  varnish  of  fiction  or  sophistry.  In  plain 
language,  such  an  exhibition  of  original  power  is  in  the  nature 
of  a  coup  d'etat,  an  act  of  force  originating  in  lawlessness,  but, 
because  done  by  a  body  whose  power  is  overwhelming, -an  act 
which  it  were  folly  to  impeach.  A  striking  instance  of  this  sort 
of  original  manifestation  of  sovereignty  occurred  in  England  in 
consummating  the  Reform  movement  in  1832.  The  English 
people  had  been  excited  to  the  verge  of  revolution  by  the  agi 
tators  for  reform  in  the  electoral  system.  A  reform  bill,  passed 
by  the  Commons,  had  been  twice  thrown  out  by  the  Lords. 
Neither  house  giving  way,  and  an  outbreak  of  violence  seeming 
inevitable,  the  prime  minister,  Lord  Grey,  took  measures  forcibly 
to  carry  the  bill,  when  the  Lords  yielded  and  allowed  it  to  pass. 
Here,  the  organic*  pressure  of  the  nation,  culminating  in  the 
ministerial  project  of  deluging  the  House  of  Lords  with  new 
peers,  who  would  vote  for  the  Reform  Bill,  consummated  a 
i  Lieber's  Polit.  Ethics,  Vol.  I.  p.  256. 


INDIRECT   MANIFESTATION   OF   SOVEREIGNTY.  23 

change  in  the  constitution  of  Parliament  upon  which  the  hearts 
of  the  people  had  become  fixed.  It  was  a  revolution  effected 
by  the  direct  action  of  the  body  politic,  and  not  by  the  vulgar 
usurpation  of  a  prince  or  military  leader,  so  common  in  the 
history  of  political  revolutions.* 

§  24.  With  the  indirect  manifestations  of  sovereignty,  through 
the  intermediation  of  agents,  all  are  familiar.  Save  in  the  ex 
ceptional  modes  just  described,  the  sovereign  exercises  the  right 
of  sovereignty  in  no  other  way  than  by  procuration.  It  cannot 
meet  to  deliberate,  as  it  must  do  to  engage  directly  in  legislation. 
When  laws  are  established,  it  cannot  in  person  expound  or 
apply  them  ;  nor,  when  expounded  or  applied,  can  it  superintend 
their  execution.  It  is  a  society  sovereign  as  a  totality,  but,  as 
such,  so  unwieldy,  that  a  direct  exercise  of  its  functions,  save  in 
miniature  states,  like  the  ancient  democracies,  or  the  city  com 
monwealths  of  the  Middle  Ages,  is  wholly  impracticable.  For 
this  reason  it  organizes  systems  of  agencies,  to  which  it  dele 
gates  the  right  to  exercise  such  powers  as  it  chooses  to  grant. 
The  agents  holding  these  delegated  powers,  collectively  consid 
ered,  constitute  the  civil  government  of  the  society. 

In  most  modern  governments,  including  our  own,  there  are 
four  distinct  branches  or  departments,  to  which  are  confided  the 
powers  delegated  by  the  sovereign.  Of  these,  the  first  is  the 
Electors,  whose  function  is  that  of  choosing  out  of  their  own 
number  the  functionaries  employed  in  the  other  departments,  to 
which  in  the  United  States  is  added  that  of  enacting  the  funda 
mental  laws.  The  electoral  body  is  the  most  numerous  in  the 
state,  charged  with  an  official  function.  It  comprises  the  suf 
frage-holders,  or  voters,  or,  in  a  qualified  sense,  the  people,  and 
differs  from  the  other  three  departments  in  that  it  constitutes  a 
body  which  never  assembles,  but  acts  in  segments  of  such  con 
venient  size  as  not  to  render  conference  and  cooperation  imprac 
ticable. 

The  other  three  departments  are  familiar  under  the  names  of 
legislative,  executive,  and  judicial  departments,  charged  with  the 
duties  indicated  by  those  terms  respectively. 

To  these  four  systems  of  agencies,  common  to  the  best  gov 
ernments  of  both  Europe  and  America,  those  of  the  United 
States  have  added  a  fifth,  unknown  abroad, —  the  Constitutional 
Convention, — whose  functions,  as  we  have  already  seen,  are  such 


24  PRACTICAL   COROLLARIES. 

as  to  rank  it  as  a  legislature,  but  a  special  legislature,  whose 
duty  it  is  to  participate  in  the  framing  or  amending  of  Consti 
tutions. 

Of  these  five  departments,  the  last  four  represent  the  sover 
eign  only  mediately,  —  those  who  fill  them  being  either  elected, 
in  accordance  with  legal  provisions,  by  the  first,  the  electors,  or 
appointed  by  some  coordinate  department.  The  electors,  on  the 
other  hand,  represent  the  sovereign  immediately,  being  desig 
nated  by  the  latter  in  the  original  act  constituting  the  govern 
ment,  the  Constitution. 

It  is  evident  that  neither  of  the  five  systems  of  agencies 
named  is  possessed  of  sovereignty,  though  by  delegation,  me 
diate  or  immediate,  they  all  exercise  more  or  less  of  its  powers. 
There  is  observable  amongst  them,  moreover,  a  gradation  :  first, 
with  respect  to  the  extent  to  which  they  are  vested  with  sover 
eign  powers  ;  and,  secondly,  with  respect  to  the  nearness  of  their 
relations  to  their  head,  the  sovereign.  Thus,  in  both  particulars, 
the  electoral  body  ranks  high,  since  it  stands,  as  we  have  seen, 
nearest  to  the  sovereign,  and  its  functions,  though  limited,  are 
extremely  important.  The  two  legislative  departments  are 
vested  with  powers  more  extensive  than  any  others :  the  con 
vention,  with  power  to  frame  the  fundamental  laws,  to  be  passed 
upon  by  the  electors  ;  and  the  legislature,  with  the  broad  pow 
ers  of  remedial  and  punitory  legislation.  After  these  follow  the 
executive  and  judiciary,  charged  severally  with  functions  more 
limited,  though  of  vast  importance  to  the  state. 

On  the  whole,  if  required  to  marshal  the  five  systems  of  agen 
cies  according  to  their  relative  rank,  to  be  determined  by  the 
degree  in  which,  in  the  various  respects  indicated,  they  represent 
the  sovereign  power,  I  should  place  them  thus :  1,  the  Electors  ; 
2,  the  Legislature ;  3,  the  Convention ;  4,  the  Executive ;  and 
5,  the  Judiciary. 

§  25.  Before  proceeding  further  with  the  discussion  of  sover 
eignty,  I  desire  to  draw  from  what  has  preceded  one  or  two  cor 
ollaries  having  a  direct  practical  bearing  on  the  main  subject  of 
this  treatise,  the  Constitutional  Convention,  its  powers  and  func 
tions.  These  corollaries  are  deducible  from  the  principles  enun 
ciated  above,  by  the  aid  of  what  I  may  call  the  doctrine  of 
constitutional  presumptions,  which  may  be  explained  as  follows : 

The  sovereign,  having  once  established  agencies  for  the  gov- 


CONSTITUTIONAL   PRESUMPTIONS.  25 

ernment  of  the  state,  retires  from  view,  and,  except  by  the  pres 
sure  of  opinion,  or  by  power  from  time  to  time  irregularly 
applied,  ceases  to  interfere  in  the  conduct  of  affairs ;  in  this 
respect,  dealing  with  the  system  established  by  it  as  the  Deity 
dealt  with  the  universe,  when,  having  created  it,  He  left  it,  as 
it  were,  "  wound  up,"  to  run  according  to  the  laws  He  had  or 
dained,  and  interfered  with  it  only  by  affecting  the  consciences 
of  men,  or  occasionally,  perhaps,  by  special  providences,  when 
some  crisis  demanded  it.  In  the  act  of  retiring  thus  the  sover 
eign  virtually  says  :  "  These  are  my  agents.  What  this  pro 
claims,  in  the  forms  prescribed,  you  shall  consider  as  law.  To 
this,  I  have  given  power  to  expound  and  apply  the  law,  and  to 
this,  power  to  carry  the  law  into  effect,  using,  if  needful,  the  en 
tire  public  force.  When  the  system  I  have  established  needs 
reparation  or  renewal,  let  this  body  propose,  and  this  other  ratify, 
the  needed  changes.  Here  is  the  commission  by  whose  letter  or 
spirit  all  are  to  be  guided  —  the  Constitution." 

Now,  respecting  a  system  thus  established,  what  presump 
tions  arise  as  against  any  other  system  or  institution  springing 
up  by  its  side,  unknown  or  hostile  to  it  ? 

They  are  two :  — 

1.  That,  at  any  given  time,  the  sovereign  body  is  content  with 
the  establishment  now  existing,  created  by  its  own  act — a  pre 
sumption  arising   from  the  very  fact   that   that  establishment 
exists. 

2.  That  if  the  sovereign  body  desired  a  change  in  the  struct 
ure   or  functions  of  the  government  founded  by  itself,  it  would 
prefer  to  indicate  that  desire  through  its  own  agents,  and  not 
through  strangers  or  persons  standing  to  it  in  no  official  rela 
tion  ;  and  that  it  would  choose  to  effect  such  change  by  some 
authorized  organic  action  of  the  system  itself,  whereby  harmony 
between  governors  and  governed  would  be  assured,  rather  than  by 
irregular  methods,  as  by  exhibitions  of  original  power  by  itself, 
or  by  usurpations  on  the  part  of  individuals  or  public  bodies, 
savoring  of  revolution,  and  rendering  such  harmony  impossible. 

These,  I  apprehend,  are  the  presumptions  warranted  by  the 
relations  indicated.  Applying  these  as  a  test  to  the  case  of  polit 
ical  action,  the  following  corollaries  are  justified  :  — 

1.  That  all  interference  with  the  frame  or  working  of  a  gov 
ernment  established,  by  persons  ab  extra,  that  is,  not  commis- 


26  WHERE   SOVEREIGNTY   RESIDES   IN   FOREIGN   STATES. 

sioned  for  that  purpose  by  the  government  itself,  is  usurpation, 
though  participated  in  by  every  citizen  in  the  Commonwealth, 
and  is  therefore  illegal  and  revolutionary.1 

2.  That  whenever  a  public  body,  belonging  to  the  govern 
mental  system  established  by  the  sovereign,  assumes,  without  an 
express  warrant  in  the  Constitution,  laws,  or  approved  customs 
of  the  country,  to  meddle  with  that  Constitution,  with  the  laws, 
or  with  the  public  administration,  it  is  guilty  of  usurpation,  and 
its  acts  are  null  and  void. 

§  26.  In  the  general  discussion  of  sovereignty,  in  the  preced 
ing  sections,  that  power  has  been  supposed  to  reside  in  the  body 
politic,  comprising  the  whole  population  of  the  Commonwealth, 
without  distinction  of  age  or  sex.  This  presents  the  theoretical 
view  of  the  question.  It  is  important  for  my  purpose  to  go  be 
yond  this,  and  ascertain  how  far  the  theoretical  view  corresponds 
with  historical  or  existing  facts,  and  if  discrepancies  should  ap 
pear,  to  explain  their  causes  and  character. 

The  question  may  be  considered  with  reference,  —  I.,  to  For 
eign  States ;  and  II.,  to  the  United  States  of  America. 

I.  In  most  civilized  states  abroad,  there  is  much  confu 
sion  of  ideas  in  reference  to  the  locus  of  the  sovereign  power. 
In  some,  it  is  placed  in  the  monarch  or  chief  executive  officer, 
who,  in  fact,  exercises  wide,  and  often  unlimited,  powers.  In 
others,  it  is  located  in  a  close  corporation  of  nobles,  wielding 
similar  powers.  In  a  third  class,  comprising  governments  of  a 
mixed  character,  with  a  monarch,  a  privileged  nobility,  and  a 
commonalty  representing  the  nation  at  large,  the  latter  is  prac 
tically  recognized  as  the  true  sovereign.  But  while  in  this  case 
there  is  a  real  conformity  to  principles,  the  fiction  is  entertained 
that  the  monarch  is  the  fountain  of  all  power,  the  sovereign  in 
fact,  as  in  name.  In  the  other  two  varieties,  the  existence  of 
the  nation  as  a  power  distinct  from  the  court,  is  ignored  in  law, 
and  appears  as  a  fact  only  in  those  terrible  moments  when  the 
giant,  overthrown  and  trodden  under  foot  of  his  servants,  heaves 
beneath  them,  crumbling  to  pieces  the  structures  founded  upon 
the  theory  of  his  permanent  subjection.  The  course  of  history 
demonstrates  that  the  power  of  the  nation  is  always  in  the 
long  run  superior  to  that  of  any  fraction  of  it,  and  needs  but  to 

1  For  an  exposition  of  the  import  of  the  terms  revolution  and  revolutionary, 
as  used  in  this  treatise,  see  ch.  iv.  §§  109-113. 


WHERE   SOVEREIGNTY   RESIDES   IN   THE   UNITED   STATES.          27 

be  called  out.  What  Sully  has  said  of  the  populace,  is  true  of 
nations :  "  They  never  rebel  from  a  desire  of  attacking,  but 
from  an  impatience  of  suffering."  When  the  limit  of  endur 
ance  has  been  reached,  governments  and  dynasties  are  in  their 
presence  but  as  flax  before  the  fire.  If  the  body  politic,  like 
Gulliver  among  the  Lilliputians,  is  bound  by  the  pigmy  tribe 
intrusted  with  its  protection,  it  is  not  because  it  has  lost  either 
its  power  or  its  right,  nor  because  in  its  betrayers  there  exists 
that  irresistible  potency  which  is  everywhere  recognized  as  the 
basis  of  dominion.  The  despotism  practised  by  them  is  a  per 
missive  one,  founded  on  the  good  nature,  the  inertness  or  the 
temporary  distraction  of  its  victims.  Let  the  step  too  far  be 
taken,  and  it  springs  up  sovereign  by  a  title  as  indisputable  as  a 
decree  of  fate  —  that  of  superior  force. 

In  the  states  in  question,  then,  the  real  sovereign  is  the  body 
politic,  as  theory  requires.  But  in  most  of  them,  the  true 
sovereign  has  allowed  itself  to  be  stripped  of  its  robes  of  state 
by  usurping  servants.  Its  very  existence  as  a  fountain  of  au 
thority  is  denied,  the  relations  of  superior  and  inferior  being, 
practically,  through  the  supineness  of  the  former,  reversed. 

§  27.  II.  I  come  now  to  the  most  important  question  of  all, 
namely,  — 

Where  lies  the  sovereignty  in  the  United  States,  and  how  does 
it  exist  in  the  person  or  body  ascertained  to  be  the  depositary 
thereof? 

1.  The  first  branch  of  this  question  may  be  considered  from 
two  points  of  view,  in  the  main  independent  of  each  other, 
namely  :  (a),  from  that  of  the  elementary  principles  of  sover 
eignty,  developed  in  the  foregoing  sections  ;  and  (6),  from  that 
of  historical  facts  and  principles  evolved  in  the  life  of  this  and 
other  peoples,  and  having  a  tendency  to  determine  the  question 
of  American  nationality. 

A  short  space  will  be  devoted  to  this  question  from  each  of 
these  points  of  view. 

(a).  Distinguishing  the  territory  and  people  of  the  United 
States  from  the  residue  of  the  territory  and  people  of  the  earth, 
and  considering  the  same  as  forming  an  inc7apendent  society, 
it  is  evident  that  the  right  of  sovereignty  resides  somewhere 
within  it  in  as  ample  a  measure  as  in  any  other  political  so 
ciety. 


28  MARKS   OR   TESTS   OF   SOVEREIGNTY   APPLIED. 

The  difficulty  is,  in  the  jumble  of  National  and  State  organi 
zations,  to  locate  it. 

Recurring  now  to  the  definition  and  marks  or  tests  of  sover 
eignty  laid  down  in  this  chapter,  let  us  see  if  it  be  possible  to 
find,  with  their  help,  where  that  power  probably  resides  in  the 
United  States. 

A  sovereign  person  or  body,  as  we  have  seen,  is  one  to  whom 
there  is,  politically,  no  superior. 

Contrasting  the  State  governments,  as  political  organizations, 
with  the  Federal  government  as  a  political  organization,  it 
is  evident  that  the  former  cannot  be  said  to  be  sovereign,  or 
by  consequence  to  be  possessed  of  sovereignty,  either  collectively 
or  individually,  since  if  their  equality  with  the  Federal  govern 
ment  were  conceded,  they  certainly  are  not  its  superior.  But 
their  equality  cannot  be  conceded.  By  the  Constitution  of  the 
United  States,  that  instrument  and  the  laws  of  the  United 
States,  made  in  pursuance  thereof,  are  declared  to  be  the  su 
preme  law  of  the  land,  and  the  judges  in  every  State  are  to  be 
bound  thereby,  and  all  State  officials,  legislative,  executive,  and 
judicial,  are  to  be  bound  by  oath  to  support  that  Constitution. 
If,  therefore,  it  might  seem  from  the  fact  that  a  separate  and  in 
dependent  jurisdiction  is  apportioned  to  the  several  States  on 
the  one  hand,  and  to  the  general  government  on  the  other,  that 
they  are  equal  to  each  other,  these  clauses  of  the  Constitution 
show  that  such  is  not  the  case,  but  that,  in  all  that  wide  field, 
where  the  powers  of  both  are  concurrent,  or  where  it  is  doubtful 
with  which  the  power  is  lodged,  and  collisions  occur  or  impend, 
the  latter  is  to  be  taken  as  supreme.  If  either  of  the  two,  there 
fore,  the  States  or  the  general  government,  is  sovereign,  it  is  not 
the  former  "but  the  latter. 

But  is  it  true,  that  sovereignty  is  lodged  with  the  general  gov 
ernment? 

Applying  the  same  principles,  and,  in  their  light,  contrasting 
the  federal  government  with  the  people  of  the  United  States,  — 
the  only  other  imaginable  depositary  of  sovereign  powers,  —  it  is 
clear  that  those  powers  must  belong  to  the  latter  and  not  to  the 
former,  for  two  reasons.  1.  The  people  of  the  United  States 
"ordained  and  established "  the  Federal  government, —  created 
it.  As  between  creator  and  creature,  the  former  must  be  the  po 
litical  superior  of  the  latter.  2.  Governments  are  always  sec- 


MARKS    OR   TESTS   OF   SOVEREIGNTY    APPLIED.  29 

ondary  and  vicarious.  They  are  agencies,  and  to  suppose  them 
possessed  of  sovereign  powers,  is  to  make  those  powers  alienable 
beyond  redemption,  which  is  opposed  to  the  true  conception  of 
sovereignty.  It  is  rather  the  people  of  the  United  States,  who, 
having  created, 'may  be  presumed  competent  to  alter  or  abolish, 
their  government,  that  is  the  true  sovereign. 

So  much  for  the  inferences  to  be  drawn  from  the  definition  of 
sovereignty. 

§  28.  Let  us  now  subject  the  three  political  bodies  or  entities 
specified  to  a  rigid  scrutiny,  to  see  if  in  either  of  them  there  can 
be  discovered  the  distinguishing  marks  of  sovereignty  above 
described. 

"  If  a  determinate  human  superior,"  says  Mr.  Austin,1  "  not 
in  a  habit  of  obedience  to  a  like  superior,  receive  habitual  obedi 
ence  from  the  bulk  of  a  given  society,  that  determinate  superior 
is  sovereign  in  that  society." 

What  political  body,  institution,  or  entity  is  there,  in  the 
United  States,  not  in  a  habit  of  obedience  to  any  other  body, 
etc.,  which  receives  habitual  obedience  from  the  bulk  of  the 
Union,  but  the  people  of  the  United  States  ?  It  certainly  is  not 
the  States,  for  they  have  habitually  obeyed,  each  and  all  of  them, 
the  people  of  the  United  States  ever  since  the  latter  entered  into 
a  union  as  one  people.2  The  people  of  the  United  States,  in 
1789,  threw  the  existing  Constitutions  of  the  several  States  into 
hotchpotch,  and  repartitioned  amongst  those  bodies  the  powers 
they  were  thenceforth  to  exercise,  giving  a  portion  thereof  to  the 
States,  a  portion  to  the  general  government,  and  reserving  the 
residue  to  themselves.  And  the  States  have  habitually  conformed 
to  the  edict  which  thus  curtailed  and  ascertained  their  powers. 

Not  only  this :  the  States,  since  the  foundation  of  the  Union, 
have  not  received  "habitual  obedience  from  the  bulk"  of  the 
Union  ;  certainly  not,  severally  considered ;  for  while  the  respect 
ive  States  have  received  habitual  obedience,  each  from  the  bulk 
of  its  own  people,  they  have  not  received  it  severally  from  the 
peoples  of  the  other  States;  that  is,  the  State  of  Virginia  has 

1  See  ante,  §  19. 

2  The  word  habitually  is  inserted  by  Mr.  Austin  in  this  test  of  sovereignty  to 
cover  the  very  case  lately  presented  by  the  United  States  ;  that  is,  the  case  in 
which  a  part  of  the  society  should  be  for  a  time  in  revolt  against  the  sovereign 
whole.     It  is  the  general  habit  of  all  the  parts  to  obey ;  that  is,  to  determine 
where  the  sovereignty  resides. 


30  MARKS   OR   TESTS   OF    SOVEREIGNTY   APPLIED. 

received  habitual  obedience  from  the  bulk  of  the  Virginians,  but 
not  from  that  of  the  people  of  the  whole  Union. 

If  it  be  urged  that  the  States  collectively  have  received  obedi 
ence  from  the  bulk  of  the  Union,  and  therefore  fulfil  the  condi 
tions  necessary  to  make  them  sovereign  organizations,  the  reply 
is,  that  the  term  "  States  "  is  ambiguous,  meaning  either  the  citi 
zens  of  the  United  States,  comprised  within  the  State  lines  re 
spectively,  or  the  governments  established  by  them  within  the 
same  lines.  In  the  latter  sense,  it  is  not  true  that  the  States, 
considered  either  severally  or  collectively,  have  ever  received  obe 
dience  from  the  bulk  of  the  society  forming  the  Union.  The 
State  governments  have  no  extra-territorial  operation,  and,  of 
course,  receive  no  extra-territorial  obedience.  In  the  former 
sense,  by  the  "  States,"  collectively  considered,  would  be  meant 
the  entire  people  of  the  United  States,  and  the  hypothesis  in 
question  would  attribute  sovereignty  to  that  people,  acting  in 
groups  by  States  —  a  view  of  the  subject  whose  correctness  I 
shall  have  occasion  to  examine  when  I  come  to  consider  how 
sovereignty  exists  in  the  people  of  the  United  States.  For  the 
present,  I  shall  only  observe,  that  if  the  case  last  supposed  were 
conceded  to  express  the  real  fact,  it  would  not  make  the  States, 
as  such,  sovereign,  either  individually  or  collectively,  but  the 
people  of  the  United  States,  acting  in  a  particular  way  or  under 
particular  conditions,  as  in  groups,  discriminated  from  each  other 
by  State  boundaries. 

§  29.  Tested  by  the  concluding  mark  above  described,1  the 
result  is  the  same. 

Whenever,  it  was  said,  there  exist,  within  the  same  territo 
rial  limits,  two  political  organizations  so  related  to  each  other 
that  one  may  determine  its  own  powers  and,  in  so  doing,  limit, 
enlarge,  or  abolish  those  of  the  other,  being  itself  at  the  same 
time  not  only  subject  to  no  reciprocal  modification,  but  inde 
pendent  of  all  the  world,  the  former  is  a  sovereign  organization, 
and  the  latter  is  not. 

Seeking  amongst  the  political  entities  of  the  United  States 
one  which  answers  to  these  conditions,  it  is  plain  that  no  one 
of  them  does  so,  unless  it  be  the  people  of  the  United  States. 
Neither  the  government  of  the  United  States,  nor  the  people  nor 
government  of  the  several  States,  answers  either  of  those  condi 
tions,  being  each  of  them  subject  to  the  modifying  influence  of  a 

1  Ante,  §  20. 


DEFINITION   OF   A   NATION.  31 

power  underlying  them  all,  from  which  they  received  either  their 
origin  or  those  structural  changes  by  which  their  present  form 
and  scope  were  determined.  That  underlying  power  is  the 
people  of  the  United  States.1  To  attribute  sovereignty  to  the 
former,  therefore,  would  be  an  abuse  of  terms. 

On  the  other  hand,  the  conditions  of  sovereignty  required  are 
all  fulfilled  by  the  people  of  the  United  States.  Neither  their 
powers  nor  their  modes  of  administration  are  determined  by 
the  States,  severally  considered,  whether  as  peoples  or  govern 
ments,  nor  by  the  government  of  the  Union,  but  by  themselves 
alone  in  some  mode  selected  by  themselves.  It  rests  with  them, 
moreover,  to  remodel  or  to  abolish  the  governments  both  of  the 
States  and  of  the  Union,  and,  if  they  choose,  to  wipe  out  the 
States  themselves  as  political  organizations.  Under  what  con 
ditions  this  may  be  done,  will  be  the  subject  of  future  consid 
eration.  For  my  present  purpose,  it  is  enough  that  the  thing 
may  be  done  under  some  conditions.  This  fact  alone  indicates 
that  the  people  of  the  United  States  are  the  only  sovereign. 
If  it  turn  out,  as  it  will,  that  the  conditions  prescribed  under 
which  alone  they  can  do  this,  are  prescribed  by  themselves,  and, 
therefore,  are  enforcible  only  by  moral  sanctions,  that  they  are 
the  sovereign  will  become  perfectly  certain. 

§  30.  (b).  I  pass  now  to  consider  briefly  a  few  historical  facts 
and  principles  tending  to  determine  the  mooted  question  of 
American  nationality,  with  a  view  to  furnishing  other  and  per 
haps  more  solid  grounds  of  inference  as  to  the  locus  of  sover 
eignty  in  the  United  States.  For,  if  the  latter,  as  a  political 
society,  constitute  a  NATION,  there  is  an  end  of  all  question, — 
the  sovereignty  dwells  in  the  people  of  the  United  States,  con 
sidered  as  a  body  politic  and  corporate.2 

Do  the  United  States,  then,  constitute  a  Nation  ? 

Before  attempting  to  answer  this  question,  let  us  determine 
what  it  is,  and  what  it  is  not,  to  be  a  nation. 

A  nation  is  defined  to  be  "  a  race  of  men  ;  a  people  born  3  in 

1  For  a  more  complete  exhibition  of  this  relation  of  the  people  of  the  United 
States  to  the  people  and  government  of  the  States  respectively,  see  post,  §§  58 
and  62. 

2  "Now,  an  independent  nation  is,  ex  vi  termini,  a  sovereign." — Grimke, 
arguendo,  2  Hill's  S.  C,  Rep.  58.     Vattel,  bk.  1,  ch.  1,  sec.  12. 

3  "  Nascor"  "  natus"  "  natio"  —  to  be  born. 


32  DEFINITION   OP   A    NATION. 

the  same  country,  and  living  under  the  same  government;  a 
people  distinct  from  others." 1 

In  this  definition  is  evidently  involved  the  idea  cf  descent 
from  a  common  stock.  This,  though  substantially  correct, 
would  exclude  those  cases  in  which  different  races  are  mingled 
in  a  lasting  political  union ;  as  when,  to  a  central  stock,  there 
are  accreted  foreign  elements  by  adoption. 

A  nation,  then,  in  its  largest  sense,  is  analogous  to,  but  not 
identical  with,  the  family.  It  is  a  distinct,  independent  people  ; 
consisting  of  men  of  one  blood,  with  such  accretions  from  alien 
races  as,  resulting  from  common  affinities,  are  destined  to  be 
permanent ;  occupying  a  determinate  territory,  within  whose 
limits  it  maintains  its  own  forms  of  social  organization  ;  possess 
ing  the  same  language,  laws,  religion,  and  civilization,  the  same 
political  principles  and  traditions,  the  same  general  interests, 
attachments,  and  antipathies  ;  in  short,  a  people  bound  together, 
by  common  attractions  and  repulsions,  into  a  living  organism, 
possessed  of  a  common  pulse,  a  common  intelligence  and  aspira 
tions,  and  destined  apparently  to  have  a  common  history  and  a 
common  fate. 

So  far  of  the  affirmative  definition  of  a  nation. 

§  31.  The  negative  may  be  given  in  equally  few  words. 

1.  To  be  a  nation  is  not  to  be,  literally,  of  one  blood  or  race, 
but,  as  we  have  seen,  to  be  mainly  of  one  blood   or  race,  but 
with  permanent  accretions  from   other  races,  undergoing,  con 
sciously  or  otherwise,  the  process  of  assimilation  to  the  prevail 
ing  type. 

2.  To  be  a  nation,  it  is  not  necessary  that  all  its  constituent 
members  should  be  continuously,  and  under  all  circumstances, 
willing  or  even  acquiescent  participators  in  the  common  national 
life.     Civil  wars  and  dissensions,  though  facts  tending  to  dis 
prove  the  existence  of  nationality  in  a  particular  case,  are  far 
from  decisive  of  that  question,  being  as  inconclusive  evidence 
of  its  non-existence  as  a  strong  and  enduring  friendship  between 
two  contiguous  nations  would  be  that  they  constituted  but  a 
single  nation.     Wars  arise  as  often,  perhaps,  between  factions 
of  the  same  blood  and  race,  impelled  by  political  animosity  or 
ambition,  but  confessedly  forming  a  single  nation,  as  between 
parties  of  diverse  descent,  scrambling  for  ascendency  in  a  con- 

1  Worcester's  Dictionary,  in  verb. 


EXAMPLES   OF   NATURE'S   METHOD.  33 

federation,  possessing  no  distinctive  national  features.  If  civil 
commotions,  however  extensive,  were  proof  that  a  people  did 
not  constitute  a  nation,  what  nation  has  ever  existed  ? 

§  32.  Proceeding,  now,  in  the  light  of  these  definitions,  it  may 
be  inferred  that  the  United  States  constitute  a  nation,  — 

1.  From  the  fact  that,  in  their  development  from  sparse  set 
tlements  into  a  compact  and  powerful  state  —  e  pluribus  unum  — 
there  is  observable  a  perfect  conformity  to  the  method  of  nature  in 
the  genesis  of  nations. 

Let  us  see  what  that  method  is  :  — 

Nations  do  not  spring  into  life,  in  full  bloom  of  population, 
wealth,  and  culture.  They  are  developed  from  rude  beginnings, 
by  a  process  of  assimilation  and  growth  analogous  to  that  in 
organic  life.  In  their  origin,  they  commonly  form  a  chaos  of 
heterogeneous  materials.  These,  Nature  subjects  to  her  kindly 
influences  of  warmth  and  pressure,  till  they  assume  a  character 
homogeneous,  and,  because  formed  under  new  conditions,  dis 
tinctive. 

There  are  two  modes  in  which  the  diversified  materials  that 
ultimately  fuse  into  nations  are  brought  into  the  contact  neces 
sary  to  a  vital  union.  They  may  be  superimposed,  like  geolog 
ical  strata ;  as,  where  a  race  comes  in  by  conquest  over  another, 
whose  polity  it  subverts,  and  which  it  keaps  beneath  itself  as 
subjects  or  vassals ;  or  those  materials,  being  dropped  apart,  like 
chance  seeds,  in  a  wide  territory,  may  take  root  and  spread,  each 
from  its  little  centre,  and  come  in  turn  to  press  upon  each  other 
laterally. 

Whichever  of  these  modes  obtains,  the  constant  phenomena 
are  at  first  estrangements,  swelling  into  wars  by  reason  of  collis 
ions  of  interests,  or  differences  of  character  and  habit.  Time, 
however,  kneads  the  colliding  elements  gradually  into  consis 
tency.  From  being  like,  they  soon  come  to  like,  each  other. 
Perhaps  the  process  by  which  their  fusion  is  completed  is,  that 
they  suffer  some  common  affliction,  or  wage  together  some  great 
war,  in  which  every  drop  of  blood  cements  them  into  a  firmer 
union. 

§  33.  Of  the  first  mode,  most  European  nations  furnish  exam 
ples.     From  the  earliest  historical  dates  have  been  witnessed  in 
them  wave  after  wave  of  conquering  races  rolling  from  the  east 
and  north,  and  dashing  one  upon  the  other  as  they  went  west- 
3 


34  METHOD    EXHIBITED   BY   THE   UNITED    STATES. 

ward  and  southward,  but  never  returning.  Out  of  these  diverse 
and  hostile  alluviums  Nature  has  built  the  great  races  that  we 
have  seen  in  modern  times  in  Europe. 

Of  the  other  mode,  early  Rome  was  an  example.  In  the  first 
years  of  her  history,  Italy  was  filled  with  petty  states,  among 
which  Rome  was  but  prima  inter  pares.  As  they  grew,  jeal 
ousies  led  to  border  wars,  in  which  that  single  city  long  main 
tained  a  doubtful  conflict  with  neighbors  too  nearly  her  equals  to 
be  completely  subdued.  As  Rome  waxed  great,  and  the  privi 
leges  of  her  citizenship  became  more  and  more  highly  prized, 
what  her  arms  alone  had  failed  to  accomplish,  she  did  by  her 
policy ;  she  absorbed  the  neighboring  tribes  into  her  own  organi 
zation,  and  thus,  from  one  of  the  loosest,  became  one  of  the 
compactest  and  most  enduring  nationalities  that  the  world  has 
ever  seen. 

Such  is  the  method  of  Nature  in  the  genesis  of  nations  ;  be 
ginning  with  elements  diverse  and  discordant,  she  ends  by 
kneading  them  into  likeness  and  unity. 

It  should  be  noted,  too,  that  whether  this  process  be  slow  or 
rapid,  the  nature  of  the  result  is  the  same.  Thus,  what  Rome 
was  many  centuries  in  accomplishing,  under  the  circumstances 
that  surrounded  her  —  barbaric  populations  on  all  sides,  want 
of  roads,  of  facilities  for  education,  of  a  sufficient  public  revenue, 
of  nearly  every  thing  that  gives  impulse  to  national  growth, 
—  a  people,  however  heterogeneous,  endowed  with  steam,  in 
its  thousand  applications,  with  the  telegraph,  the  printing-press, 
and,  above  all,  with  that  modern  spirit,  which  is  fruitful  of  great 
enterprises,  in  all  departments  of  human  endeavor,  under  circum 
stances  the  most  adverse,  would  be  able  to  achieve  in  a  few 
decades  of  years. 

Now,  the  conditions  presented  by  the  United  States  were,  in 
our  early  history,  similar  to  those  of  Rome.  Our  land  was 
dotted  over  with  isolated  communities,  that  had  sprung  up  here 
and  there  sporadically,  as  chance  had  led  to  settlement.  Grow 
ing  from  remote  and  too  frequently  hostile  societies,  out  into  the 
presence  of  each  other,  what  affinities  they  had,  from  identity 
of  race,  laws,  literature,  and  religion,  and  from  similarity  of  cir 
cumstances  and  condition  with  respect  to  European  nations, 
were  set  actively  at  work,  as  also  their  mutual  repulsions. 

But  there  was  this -difference  between  America  and  Rome, — 


STEPS   TOWARDS   A    NATIONAL    UNION   IN   AMERICA.  35 

the  latter  arose  slowly,  and  with  struggles  tedious  and  endless, 
ages  before  the  birth  of  Christ ;  the  former  sprang  up  two  thou 
sand  years  later,  after  the  life  and  teachings  of  that  Divine  per 
sonage  had  fruited  into  the  institutions  of  our  time,  when,  as 
compared  with  that  of  Rome,  a  day,  in  its  actual  achievement, 
is  as  a  thousand  years. 

In  this  manner  and  under  these  influences,  the  United  States 
have  become  what  we  see.  Whether  the  result  has  been  to 
make  of  them  a  nation,  is  the  question.  So  far  as  the  method 
of  their  development  is  concerned,  there  are  furnished,  I  think, 
affirmative  indications. 

§  34.  When  we  look  closely  at  the  successive  steps  by  which 
we  came  to  be  what  we  are,  the  probability  that  we  have  ripened 
into  a  nation  is  much  increased. 

The  most  prominent  characteristic  of  American  constitutional 
history,  is  a  constant  and  impressible  tendency  toward  union. 

Including  the  crowning  act,  by  which  the  people  of  the  United 
States  crushed  the  attempt  at  disunion  in  1861-5,  there  have 
been  taken  in  our  history  eight  capital  steps  toward  the  con 
summation  of  a  complete  national  union.  These  occurred  in 
1643,  in  1754,  in  1765,  in  1774,  in  1775,  in  1781,  in  1789,  and 
1861—5.  Comparing  these  steps  with  one  another,  there  is  vis 
ible  in  them  a  steady  progress  in  two  particulars  :  first,  in  the 
number  of  the  colonies  or  States  participating  in  them  ;  and, 
secondly,  in  the  scope  of  the  successive  schemes  of  union,  the 
establishment  of  which  was  sought  or  accomplished  by  them 
respectively. 

1.  Thus,  a  scheme  of  union  was  formed  in  1643  by  four  colo 
nies  ;  in  1754,  by  seven  ;  in  1765,  by  nine  ;  in   1774,  by  twelve  ; 
in  1775,  by  thirteen,  —  the  last  two  resulting  in  the  revolution 
ary  congresses  preceding  the  confederation  ;  in  1781,  by  thirteen, 
with  great  reluctance  establishing  the  confederation ;  in  1789, 
by  thirteen,  with  less  reluctance  —  it  may  almost  be  said,  with 
eagerness  — founding  the  present  establishment;   and  in  1861-5, 
by  twenty-five  loyal,  and  a  loyal  minority  in  each  of  eleven  dis 
loyal  States,  by  force  of  arms  crushing  the  power  of  a  faction 
seeking  to  destroy  the  Union. 

2.  Without  particularizing  the  scope  of  each  of  these  eight 
efforts  at  the  consolidation  of  a  union,  with  which  all  readers  of 
our  history  are  familiar,  it  is  enough  to   observe,  that  the  first 


36  STEPS   TOWARDS   A   NATIONAL   UNION   IN   AMERICA. 

was  a  simple  league  of  four  New  England  colonies  against  the 
Indians,  and  their  hostile  neighbors,  the  Dutch ;  the  two  follow 
ing  were  similar  in  their  general  purpose,  but  broader  in  intent 
and  compass ;  the  next  two,  as  explained  above,  were  broader 
still,  embracing  practically  the  entire  continent,  and  being  de 
signed  to  engineer  the  contest  with  Great  Britain ;  the  sixth  was! 
the  first  formal  and  regular  attempt  to  establish  a  government  ) 
for  united  America,  but  undertaken  with  such  fear  and  jealousy, 
that  the  system  established  stood,  only  so  long  as  it  was  held 
together  by  pressure  from  without ;  the  seventh  was  an  aban 
donment  of  the  idea  of  confederation,  and  the  introduction  of 
the  conception  of  a  national  government,  framed  by  the  people 
of  the  United  States,  the  several  State  governments  being  at 
the  same  time  shorn  of  much  of  their  former  power,  and  rele 
gated  to  the  secondary  position  held  by  them  as  colonies  under 
Crown.  The  last,  supreme  step  was  that  in  which  two  mill 
ion  men  in  arms  have,  in  our  day,  stamped  with  condemnation 
the  heresy  of  secession,  and  denied  the  rightfulness  of  dis 
union  either  as  fact  or  as  theory ;  thus  giving  to  that  series  of 
acts  and  charters  by  which  the  rights  of  the  colonies  were  de 
nned  and  guaranteed,  a  practical  construction,  and  justifying  the 
inference,  that  union  —  the  consolidation  of  the  various  commu 
nities  forming  the  United  Colonies  into  one  people,  one  nation  — 
was  at  once  the  purpose  of  God,  and  the  design,  sometimes  con 
sciously  and  sometimes  unconsciously  entertained,  of  the  men  of 
all  times  in  America. 

§  35.  Every  step  of  our  progress  from  1643  to  1865  being 
upon  convergent  lines,  of  which  the  point  of  meeting  would  be 
a  perfected  union,  in  my  judgment,  when  the  Constitution  of 
1789  was  ratified,  if  not  before,  we  became  that  which,  on  the  4th 
of  July,  1776,  we  had  declared  ourselves  to  be,  "  one  people"  or 
naijpn,  freft  ar^d  inrjependp.nt.  Then,  at  the  latest,  the  bundle  of 
States,  loosely  bound  together  by  the  Articles  of  Confederation, 
emerged  into  view  as  a  political  society,  and,  as  such,  assumed 
the  power  of  ordaining  a  government  for  itself,  as  well  as  for  its 
members,  before  that  claiming  to  be  sovereign.  Certainly,  if  the 
process  of  fusion,  which  a  century  and  a  half  had  been  carrying 
on,  had  not  then  become  complete,  the  conditions  necessary  for 
its  ultimate  completion  had  been  supplied,  the  collective  society 
having  been  placed  in  such  bonds  and  subjected  to  such  influ- 


RATIFICATION   OF   FEDERAL   CONSTITUTION.  37 

ences  that  the  process  must  go  on,  and  that  rapidly.  These 
bonds,  every  year  of  the  union  has  seen  growing  stronger  and 
stronger.  Beginning,  as  we  have  seen,  with  the  same  blood, 
language,  religion,  and  civilization,  with  a  love  of  the  same  lib 
erties,  with  a  unanimous  voice  for  the  same  republican  forms, 
with  a  compact  territory,  and  a  recognized  name  abroad  only  as 
a  Union,  to  these  there  have  been  added  the  bonds  of  nearly  a 
century  of  associated  life,  to  say  nothing  of  wars  prosecuted 
together  and  shedding  a  common  glory  over  that  Union,  for 
whose  defence  or  enlargement  they  have  been  waged.  AJ1- 
these,  it  seems,  whatever  we  may  have  been  when  we  started  in 
tRe  race,  ou^ht  to  have  left  us  a  nation^  in  heart  Qnrl  ^W^ry^ 
the^have  in  fact  and  in  law. 

§  36.  The  next  fact  to  which  I  shall  advert,  as  furnishing  a 
ground  of  inference  that  we  are  a  nation,  is,  that  the  Constitu 
tion  of  1787  was  ratified  by  the  people  of  the  United  States ;  in 
this  respect  violating  the  law  and  departing  from  the  precedents 
previously  in  force. 

By  the  thirteenth  of  the  Articles  of  Confederation,  it  had  been 
provided,  that  no  alteration  of  said  articles  should  at  any  time 
thereafter  be  made,  unless  such  alteration  should  be  agreed  to  in  a 
Congress  of  the  United  States,  and  "  be  afterwards  confirmed  by 
the  legislature  of  every  State."  That  is,  by  the  Federal  Consti 
tution,  in  force  when  the  present  one  was  formed,  no  change 
could  be  made  in  the  provisions  of  the  former,  but  by  the  action 
of  the  State  governments,  that  is,  of  the  States,  considered  as 
political  organizations.  This  important  constitutional  interdict 
the  Convention  of  1787,  for  reasons  deemed  adequate,  disre 
garded.  It  provided  for  the  ratification  of  the  proposed  Con 
stitution  by  Conventions  of  the  people  to  be  called  in  the  several 
States  by  the  legislatures  thereof ;  that  is,  for  its  ratification  by 
the  people  of  the  United  States,  acting,  as  was  alone  possible, 
in  groups  of  such  size  as  to  be  not  inconvenient,  and  so  arranged 
that  advantage  could  be  taken  of  the  existing  electoral  ma 
chinery,  which  belonged  exclusively  to  the  States.  This  method 
was  wholly  new,  and  involving,  as  it  clearly  did,  a  violation  of 
the  Articles  of  Confederation,  must  have  been  adopted,  because 
it  was  thought  absolutely  necessary  to  bring  forward  the  Con 
stitution  just  matured  under  wholly  new  conditions ;  to  base  it, 
not  upon  the  States,  but  upon  the  broader  and  more  solid  foun- 


38  VIEW   OP  THE   STATES   RIGHTS   SCHOOL. 

dation  of  the  people  of  the  United  States,  conceived  of  no 
longer  as  a  cluster  of  badly  cohering  populations,  but  as  a 
majestic  unit,  which,  having  emerged  into  existence,  had  at  last 
compelled  its  own  general  and  public  recognition.  Such  is  the 
lesson  to  be  learned  from  the  mode  of  ratification  of  the  present 
Constitution. 

§  37.  It  must  be  admitted,  that  a  different  view  has  been  taken 
of  the  bearing  of  the  mode  of  ratifying  the  Federal  Constitution 
on  the  question  of  our  nationality.  The  political  school,  of 
which  Mr.  Jefferson  was  the  founder,  and  Mr.  Calhoun  the  great 
apostle  and  expositor,  known  as  the  "  States  Rights  School,"  have 
deduced  their  favorite  dogma  of  the  sovereignty  of  the  States, 
from  the  alleged  ratification  of  the  Constitution  by  the  States ; 
the  argument  being,  that  what  the  States  formed  and  established 
they  may,  for  reasons  deemed  to  be  sufficient,  abrogate  and 
annul.  This  school,  admitting  that  the  Constitution  was  re 
quired  by  its  terms  to  be  ratified  by  Conventions  of  delegates 
"  chosen  in  each  State  by  the  people  thereof,"  that  is,  by  the 
people  of  the  United  States,  considered  as  gathered  into  groups, 
by  States,  nevertheless  maintain  that,  as  a  majority  of  the 
voices  in  each  group  or  State  was  made  requisite  to  its  adop 
tion,  and  not  simply  a  majority  of  the  aggregate  of  all  the 
groups,  the  ratification  must  be  considered  substantially  as  pro 
nounced  by  the  States. 

The  reply  is,  that  a  majority  of  each  State's  electors,  rather 
than  of  the  aggregate  of  the  electors  of  the  Union,  was  required, 
not  out  of  respect  for  the  rights  of  the  States,  or  with  a  view  to 
found  the  new  system  upon  the  States,  but  to  conform,  as  nearly 
as  might  be,  to  the  positive  requirements  of  the  existing  Consti 
tution.  The  thirteenth  of  the  Articles  of  Confederation  required 
all  alterations  therein  to  be  recommended  by  Congress  and  to  be 
confirmed  by  the  legislature  of  each  State.  Now,  two  difficulties 
were  apprehended  in  attempting  to  conform  strictly  to  this 
requirement.  First,  it  was  doubted  whether  a  unanimous  vote 
of  all  the  States  could  be  secured  for  the  proposed  plan.  Hence 
it  was  provided  by  the  Convention  —  Article  VII.  of  the  new 
Constitution  —  that  the  ratification  of  the  Constitution  by  nine 
States  should  be  sufficient  for  the  establishment  thereof  between 
the  States  so  ratifying  the  same.  Secondly,  it  was  feared  that 
reluctance  to  surrender  the  reins  of  power,  now  in  their  hands, 


IMPORT   OF   MODE   OF   RATIFICATION.  39 

might  lead  the  majority  in  the  several  State  legislatures,  if  the 
question  of  ratifying  the  Constitution  were  left  to  those  bodies, 
to  reject  it,  even  in  States,  whose  citizens  would  be  disposed  to 
ratify  it.  Hence  the  Convention  wisely  determined  to  disre 
gard  the  thirteenth  article  requiring  a  ratification  in  that  manner, 
and  to  commit  the  fate  of  the  instrument  to  Conventions  spe 
cially  chosen  by  the  people  for  the  very  purpose  of  passing 
upon  it. 

But,  while  the  Convention  resolved  to  disobey  the  letter  of  the 
Constitution  in  allowing  the  system  to  be  established  on  the 
ratification  of  nine  States,  and  in  substituting  Conventions  for 
legislatures  as  the  ratifying  bodies,  they  departed  from  the 
requirements  of  the  Constitution  no  farther  than  was  deemed 
necessary.  The  principle  of  unanimity  was  preserved  by  requir 
ing  the  consent  of  each  State  which  should  be  comprised  in  the 
new  system  to  be  given  to  its  provisions;  that  is,  no  State  was 
to  be  compelled  to  adopt  the  proposed  Constitution,  or,  without 
adoption  by  its  own  citizens,  to  be  governed  by  it.  _Sp,  also,  the 
old  principle  of  independent  State  action  was  made  to  coexist 
and  harmonize  with  the  new  principle  of  founding  the  polit 
ical  structure  upon  the  basis  of  the  people  of  the  United  States, 
by  requiring  the  vote  upon  its  establishment  to  be  taken  in  the 
several  States,  but  by  the  people  thereof  in  their  elementary 
character  as  citizens,  and  not  as  forming  the  governments  of  the 
States  respectively.  This,  indeed,  as  already  stated,  was  the 
only  way  in  which  a  vote  could  have  been  taken  at  all,  under 
any  effective  safeguards  to  secure  its  authenticity  and  purity. 
Except  in  the  States,  there  was  a  total  lack  of  the  machinery 
necessary  to  inaugurate  Conventions  to  adopt  or  reject  the  pro 
posed  Constitution. 

§  38.  But,  even  if  it  were  admitted  that  the  present  Constitu 
tion  was  ratified  by  the  States,  in  the  manner  and  in  the  capacity 
claimed  by  the  politicians  of  the  States  Rights  School,  it  would 
not  follow  that  the  separate  communities  brought  thereby  into  a 
closer  union  did  not,  by  the  federal  act,  become  a  nation ;  nor, 
if  they  be  conceded  to  have  been  sovereign  societies  under  the 
Confederation,  that  they  did  not  merge,  each  its  separate  sov 
ereignty,  in  that  of  the  Union.  We  have  seen  that  two  or  more 
sovereign  societies  may  become  united  into  one,  and  that  upon 
such  union  sovereignty  becomes  inherent  in  the  resultant  so- 


40  OPINIONS   OF   CONTEMPORARIES. 

ciety.  Whether  it  does  so  or  not,  however,  depends  upon  the 
closeness  of  the  union,  to  be  ascertained  from  all  the  facts  of 
the  case,  among  the  most  important  of  which  is  doubtless  the 
intent  of  the  uniting  peoples,  as  determined  by  the  phraseology 
of  the  instrument  embodying  the  conditions  of  the  union.  If,  by 
the  true  construction  of  that  instrument,  the  States,  theretofore 
supposed  to  be  sovereign,  were  intentionally  shorn  of  their  sov 
ereignty  and  subordinated  to  a  new  organization,  by  its  terms 
declared  to  be  supreme,  and  especially  if,  by  it,  there  were  rec 
ognized  as  existing  in  the  United  States,  —  whether  then  for  the 
first  time  or  not,  matters  not,  —  a  power  competent  to  control, 
alter,  or  annul  both  the  States  and  the  general  government,  thus 
declared  to  be  supreme,  it  could  not  be  denied,  that  such  power, 
the  people  of  the  United  States,  was  the  sovereign  power  of  the 
Union,  from  the  time  such  instrument  was  ratified.  Indeed,  if  it 
be  assumed,  that  the  purpose  of  the  people  in  forming  the 
present  Constitution  was  to  merge  in  the  single  sovereignty  of 
the  Union  the  sovereignties  of  thirteen  independent  sovereign 
States,  no  mode  of  ratifying  the  instrument  was  possible,  but 
that  by  the  action  of  the  States  themselves,  substantially  like 
that  which  actually  took  place. 

§  39.  One  of  the  most  valuable  indications  from  which  to 
determine  whether  or  not  we  became  a  nation  by  the  estab 
lishment  of  either  of  our  two  Constitutions,  is  derived  from 
the  expressed  opinions  of  contemporary  statesmen,  friends  as 
well  as  enemies  of  the  systems  thereby  founded. 

Respecting  the  effect  of  the  first  Federal  Constitution,  called 
the  Articles  of  Confederation,  some  doubt  has  been  not  un 
naturally  entertained.  It  did  not  make  of  us  a  nation,  for  that 
is  what  no  Constitution  could  do.  Nor  did  it,  in  explicit  terms, 
declare  us  to  have  become,  or  to  be,  a  nation.  And,  yet,  in  my 
judgment,  at  the  time  the  Confederation  was  formed,  we  were 
in  fact  a  nation,  though  the  process  of  fusion  had  not  been 
completed.  The  insane  passion  for  state  autonomy,  rife  during 
the  early  years  of  the  Revolutionary  war,  had  not  subsided. 
Because  the  war  had  proved  successful,  notwithstanding  the  im 
perfection  of  the  Union,  men  gave  to  the  crazy  fabric,  under 
which  it  had  been  carried  on,  more  credit  for  that  result  than  it 
deserved.  It  took  six  years  of  peace,  crowded  with  inter-state 
bickerings,  and  with  constant  exhibitions  of  imbecility  by  a 


OPINIONS  OF  CONTEMPORARIES.  41 

government,  which,  whatever  else  it  could  do,  could  not  govern, 
to  teach  our  fathers,  that,  if  their  union  still  subsisted,  it  was  in 
spite  of  their  government,  and  that  if  they  did  not  desire,  within 
the  borders  of  each  State,  to  see  a  repetition  of  the  rebellion 
kindled  by  Shay  in  Massachusetts,  ending,  perhaps,  in  a  general 
civil  war,  they  must  substitute  for  the  rotten  structure  of  the 
Confederation,  a  Constitution  which  should  confirm  and  not 
UjKJermirie  and  break  up  their  actuaLjinJQn.  Under  these  im 
pulses,  the  Constitution  was  framed.  But  the  circumstances  I 
have  mentioned  led  to  the  formation  of  two  parties,  one  strenu 
ous  for  its  adoption  and  the  other  bent,  by  any  and  all  means, 
upon  defeating  it.  The  charges  and  admissions  of  the  two 
disputants  discussing  its  provisions,  furnish  valuable  indications 
as  to  the  nature  of  the  Union  and  of  its  connecting  bond,  as 
viewed  by  men  then  living.  The  citations  I  shall  make  will  be 
such  as  bear  especially  on  the  present  Constitution. 

§  40.  In  the  Convention  which  framed  the  Federal  Constitution, 
the  opposing  views  indicated  were  brought  into  prominence  by 
a  question  of  power,  early  raised  by  the  partisans  of  a  confed 
erate  government.  Mr.  Randolph  of  Virginia  having  introduced 
what  is  known  as  the  Virginia  plan,  which  formed  the  basis  of 
the  Constitution  finally  established,  it  was  assailed  by  the  friends 
of  a  Confederation  on  the  ground  that  it  was  a  scheme  of  na 
tional  government,  and  that,  as  their  credentials  restricted  them 
to  the  proposing  of  amendments  to  the  system  then  in  force,  it 
was  beyond  their  powers  to  form  such  a  government.  To  the 
answer  made  to  this  objection,  that  the  government  then  in 
force,  however  improved  and  strengthened,  would  be,  as  it  had 
been,  utterly  insufficient  to  secure  the  declared  objects  thereof,  it 
was  replied,  that  that  might  be  true,  but  that  if  so,  it  furnished  a 
reason  rather  for  adjourning  and  seeking  further  powers  than  for 
usurping  such  as  were  confessedly  not  vested  in  them.1  The 

l  The  first  resolution  of  Mr.  Randolph  was  as  follows  :  —  "  Resolved,  That  a 
union  of  the  States,  merely  federal,  will  not  accomplish  the  objects  proposed  by 
the  Articles  of  Confederation,  namely,  common  defence,  security  of  liberty,  and 
general  welfare."  Mr.  Charles  Pinckney  observed,  that  "if  the  Convention 
agreed  to  it,  it  appeared  to  him,  that  their  business  was  at  an  end  ;  for,  as  the 
powers  of  the  house,  in  general,  were  to  revise  the  present  confederation,  and  to 
alter  or  amend  it,  as  the  case  might  require,  to  determine  its  insufficiency  or  in 
capability  of  amendment  or  improvement,  must  end  in  the  dissolution  of  the 
powers."— Yates'  Minutes,  (1  Ell.  Deb.)  pp.  391,  392. 


42  OPINIONS   OF   CONTEMPORARIES. 

force  of  this  argument  was  felt,  but  the  Convention  relieved 
itself  from  the  dilemma,  by  recalling  the  fact  that  its  duty  was 
not  to  conclude  but  to  recommend,  and  that  where  such  was 
the  fact,  particularly  under  the  circumstances  of  the  country, 
they  must  recommend  measures  that  promised  to  be  adequate 
to  the  exigencies  of  the  occasion  ;  and  that  to  adjourn  without 
doing  so,  because  they  found  the  defects  of  the  old  system  more 
radical  than  had  been  supposed,  would  be  to  plunge  into  an 
archy  and  civil  war.  JMr.  Randolph,  as  reported  by  Mr.  Madi 
son,  said,  —  "  When  the  salvation  of  the  Republic  was  at  stake, 
it  would  be  treason  to  our  trust  not  to  propose  what  we  found 
necessary."  1  Mr.  Hamilton  said,  —  "  He  agreed  with  the  hon 
orable  gentleman  from  Virginia  (Mr.  Randolph)  that  we  owed 
it  to  our  country  to  do  on  this  emergency  whatever  we  should 
deem  essential  to  its  happiness.  The  States  sent  us  here  to  pro- 
^-vide  for  the  exigencies  of  the  Union.  To  rely  on  and  propose 

)  any  plan   not  adequate  to  these  exigencies,  merely  because   it 
^    was  not  clearly  within  our  powers,  would  be   to   sacrifice  the 

*   end  to  the  means."  2 

Mr.  Madison  took  a  similar  view.  He  said,  —  "  A  new  gov 
ernment  must  be  made.  Our  all  is  depending  on  it ;  and  if  we 
FTave  but  a  clause  that  the  people  will  adopt,  there  is  then  a 
chance  for  our  preservation."  3  Mr.  Mason  said,  —  "  The  prin- 

-,  cipal  objections  against  that "  (the  plan)  "  of  Mr.  Randolph,  were 
the  want  of  power  and  the  want  of  practicability.  There  can 
be  no  weight  in  the  first,  as  the  fiat  is  not  to  be  here  but  in  the 
people.  He  thought  with  his  colleague  (Mr.  Randolph)  that 
there  were,  besides,  certain  crises  in  which  all  the  ordinary  cau 
tions  yielded  to  public  necessity.  He  gave  as  an  example  the 
eventual  treaty  with  Great  Britain,  in  forming  which  the  com 
missioners  of  the  United  States  had  wholly  disregarded  the 
improvident  shackles  of  Congress  ;  had  given  to  their  country 
an  honorable  and  happy  peace,  and  instead  of  being  censured 
for  the  transgression  of  their  powers,  had  raised  to  themselves  a 
monument  more  durable  than  brass."4  Mr.  C.  C.  Pinckney 
"  thought  the  Convention  authorized  to  go  any  length  in  recom- 

1  Elliott's  Deb.,  Vol.  V.  p.  197. 

2  Id.  p.  199. 

3  Yates'  Minutes,  in  Vol.  I.    Ell.  Deb.  p.  423. 
*  Ell.  Deb.,  Vol.  V.  p.  216. 


INFERENCE   FROM   THESE   OPINIONS.  43 

mending,  which  they  found  necessary  to  remedy  the  evils  which 
produced  this  Convention."  l 

§  41.  From  these  extracts  two  things  are  evident,  —  first,  that  a 
change  from  {|>e  Cnnff^pration  was  deemed  by  the  Convention 
absolutely  necessary  for  the  preservation  of  the  Stales,  fer  that 
body  acquiesced  in  the  reasonings  contained  in  them  and  acted 
upon^themj2  and,  secondly,  that  the  national  plan  of  Mr.  ±ian- 
dolph,  or  some  approach  to  it,  was  what  was  demanded  by  the 
exigencies  of  the  Union. 

§  42.  Thus  it  was  that  the  new  Constitution  was  viewed  and 
characterized  in  the  Federal  Convention.  Another  indication 
may  be  drawn  from  the  arguments  used  by  its  enemies  in  the 
several  State  Conventions,  called  to  pass  upon  it.  To  those  State 
conventions  the  Constitution  was  submitted  as  a  project  of  a 
complete  system,  to  take  the  place  and  supply  the  deficiencies 

1  Ell.  Deb.,  Vol.  V.  p.  197.     See  also  Yates'  Minutes,  in  Vol.  I.  Ell.  Deb.  pp. 
414,  415,  417,  418,  428,  492-5. 

2  How  urgent  the  necessity  for  a  government  of  large  powers  was  thought  to 
be,  may  be  inferred  from  the  intimations,  several  times  thrown  out  during  and 
after  the  Convention,  that  it  might  become  necessary  to  compel  a  union  under 
the  proposed  Constitution,  if  not  accepted  voluntarily.     Thus  Gouverneur  Morris 
said  in  the  Convention  :  —  "  This  country  must  hf>  united.     If  persuasion  does 
not  unite  it  the  sword  will.     He  beggeclthis  consul  oration   micrht  have  its  djie 
weight."  (Ell.  Deb.,  Vol.  V.  p.  276.)    Madison,  in  a  letter  to  Washington,  written 
whnVrhe  question  of   adopting  the  Constitution  was  pending  in  New  York, 
said :  —  "  There  is  at  present  a  very  strong  probability  that  nine  States  at  least 
•will  pretty  speedily  concur  in  establishing  it  "  (the  Constitution).     "  What  will 
become  of  the  tardy  remainder  ?     They  must  be  either  left,  as  outcasts  from 
the  society,  to  shift  for  themselves,  or  be  compelled  to  come  in,  or  come  in  of 
themselves  when  they  will  be  allowed  no  credit  for  it."     Id.  p.  568.     Two  days 
afterwards,  October  30,  1787,  Gouverneur  Morris,  writing  also  to  Washington  of 
the  prospect  of  adopting  the  Constitution  in  New  York,  and  of  the  condition 
of  things  in  case  she  were  to  reject  it,  said  :  — "  Jersey  is  so  near  unanimity  in 
her  favorable  opinion  that  we  may  count  with  certainty  on  something  more  than 
votes  should  the  state  of  affairs   hereafter   require   the   application  of  more 
pointed  arguments.     New  York,  hemmed  in  between  the  warm  friends  of  the 
Constitution,  will  not  easily,  unless  supported  by  powerful  States,  make  any  im 
portant  struggle,  even  though   her  citizens  were  unanimous,  which  is  by  no 
means  the  case.     Parties  there  are  nearly  balanced.     (Ell.  Deb.,  Vol.  I.  p.  505.) 
In  the  Massachusetts  Convention,   Colonel    Thompson  spoke  of  force  as  con 
templated,  after  nine  States  should  have  adopted  the  Constitution,  to  compel  the 
remaining  four  to  come  in.     He  said:  —  "  Suppose  nine  States  adopt  this  Con 
stitution,  who  shall   touch  the  other  four  ?     Some  cry  out,  Force  them.     I  say, 
Draw  them."  — Ell.  Deb.,  Vol.  II.  p.  61. 


v. 


44  OPINIONS   OF   CONTEMPORARIES. 

of  the  old  Confederation.  Admitting,  as  did  both  the  friends 
and  the  enemies  of  the  Constitution,  the  absolute  necessity  of 
a  change,  how  far  did  the  latter  regard  the  change  proposed 
by  it  as  extending  ?  It  is  perhaps  not  fair  to  take  the  charges, 
often  mere  calumnies,  of  its  enemies,  as  decisive  of  its  character 
and  powers.  But  the  charges  made  were  made  by  the  States 
Rights  party  of  that  day,  and  there  seems  a  sort  of  justice  in 
quoting  that  party  against  itself,  when  its  arguments  against 
the  Constitution  are  at  different  times  mutually  destructive. 
Besides,  if  a  presumption  is  to  be  indulged,  it  is,  that  there 
was  greater  honesty  in  the  party  when  in  the  early  days  of 
our  political  history  it  charged  that  the  proposed  Constitution 
formed  a  national  or  a  consolidated  government,  than  when 
at  a  later  day,  and  still  in  the  interest  of  State  autonomy,  it 
charged  that  it  founded  a  government  not  differing  in  principle 
from  that  of  the  Confederation. 

The  ablest  opponent  of  the  new  Constitution  was  doubtless 
Patrick  Henry  of  Virginia,  and  the  main  ground  of  his  opposi 
tion  was,  that  it  was  a  scheme  of  a  consolidated  government. 
In  the  Convention  of  that  State,  he  said,  — 

"  And  here  I  would  make  this  inquiry  of  those  worthy  char 
acters  who  composed  a  part  of  the  late  Federal  Convention. 
I "  am  sure  they  were  fully  impressed  with  the  necessity  of 
forming  a  great  consolidated  government,  instead  of  a  con 
federation.  That  this  is  a  consolidated  government  is  demon- 
strably  clear ;  and  the  danger  of  such  a  government  is,  to  my 
mind,  very  striking.  I  have  the  highest  veneration  for  those 
gentlemen  ;  but,  sir,  give  me  leave  to  demand,  what  right  they 
had  to  say,  We  the  people  ?  My  political  curiosity,  exclusive  of 
my  anxious  solicitude  for  the  public  welfare,  leads  me  to  ask, 
who  authorized  them  to  speak  the  language  of,  We  the  people, 
instead  of,  We  the  States  ?  States  are  the  characteristics  and 
the  soul  of  a  confederation.  If  the^g&atea  be  goj-the_agent3  of 
this  compact,  it  must  be  one  great  consolidated  national  govern^ 
Tnplt  nf  thf?  ppr>p1p  "f  a11  the  States." 

So,  in  the  North  Carolina  Convention,  Mr.  Taylor  said  :  — 
"  This  is  a  consolidation  of  all  the  States.  Had  it  said,  We  the 
States,  there  would  have  been  a  federal  intention  in  it.  But,  sir, 
it  is  clear  that  a  consolidation  i«  intended.  Will  any  gentle 
man  say,  that  a  consolidated  government  will  answer  this  coun- 


OPINIONS   OP    CONTEMPORARIES.  45 

try  ?  ...  I  am  astonished,  that  the  servants  of  the  legislature 
of  North  Carolina  should  go  to  Philadelphia  and,  instead 
of  speaking  of  the  State  of  North  Carolina,  should  speak  o?  the 
people.  I  wish  to  stop  power  as  soon  as  possible,  for  they  may 
carry  their  assumption  of  power  to  a  more  dangerous  length.  I 
wish  to  know  where  they  found  the  power  of  saying,  We  the 
people,  and  consolidating  the  States."  1 

A  similar  charge  was  made  in  perhaps  every  one  of  the  State 
Conventions  called  to  pass  upon  the  Constitution. 

§  43.  Now,  it  is  not  pretended,  nor  was  it  ever  admitted  by  the 
friends  of  the  Constitution,  that  that  instrument  in  fact  proposed 
a  consolidated  government.  A  consolidated  government  was 
defined  by  those  who  considered  ours  to  be  such,  to  be  either, 
first,  one  "  which  puts  the  thirteen  States  into  one,"  2  or,  secondly, 
"  one  that  will  transfer  the  sovereignty  from  the  State  govern 
ments  to  the  general  government."  3  It  is  preposterous  to  apply 
either  of  those  definitions  to  the  system  contained  in  the  Con 
stitution.  The  first  does  not  apply,  because,  as  stated  by  Mr. 
Wilson,  in  the  Pennsylvania  Convention,  the  proposed  govern 
ment  "  instead  of  placing  the  State  governments  in  jeopardy,  is 
founded  on  their  existence.  On  this  principle  its  organization 
depends ;  it  must  stand  or  fall,  as  the  State  governments  are 
secured  or  ruined."4  The  second  definition  applies  no  better, 
because  the  Constitution,  whatever  else  it  does,  clearly  does  not 
transfer  the  sovereignty  to  the  general  government.  Nobody, 
so  far  as  I  am  aware,  ever  supposed  the  source  of  all  power  in_ 
the  United  States  to  be  the  general  government.  But  the  friends 
of  the  Constitution  did  not  and  could  not  deny,  that  it  com 
prised  the  outlines  of  a  firm  national  government  of  extensive 
powers.  The  scheme  it  presented,  however,  had  other  than  na 
tional  features.  It  was,  in  a  word,  a  project  of  a  mixed  char 
acter,  partly  federal,  as  not  annihilating,  but  on  the  contrary 
weaving  into  its  texture  as  an  essential  part,  the  States,  shorn 
doubtless  of  much  of  their  powers,  but  still  powerful  and  dig 
nified  organizations  ;  and  partly  national,  as  founding  the  whole 
system,  in  all  its  features,  both  federal  and  national,  on  the  peo- 

1  Ell.  Deb.,  Vol.  III.  pp.  22,  23. 

2  Ell.  Deb.,  Vol.  II.  pp.  503-504. 

3  Ibid. 

4  Ibid. 


46  OBSERVATIONS   ON   THESE   OPINIONS. 

pie  of  the  United  States,  then  first  emerging  from  the  chaos  of 
political  elements  into  distinct  and  unmistakable  prominence 
as  a  society,  to  be,  according  to  that  Constitution,  one  and  indi 
visible  forever.1 

§  44.  Such  was  the  character  of  the  Constitution  as  viewed 
by  its  earliest  enemies  and  its  earliest  friends ;  it  was  partly  fed- 
er^il  and  partly  national. .,  Though  it  was  the  original  purpose, 
unquestionably,  of  some  of  the  most  important  States,  to  found 
a  government  possessed  of  more  national  features  than  the  one 
proposed,  that  purpose  had  been  frustrated  by  the  determined 
opposition  of  the  smaller  States  in  the  Convention,  and  a  com 
promise  had  been  made  by  which  the  government  was  to  be,  in 
its  foundation  and  in  its  principal  features,  national,  but,  so  far 
as  the  continued  existence  of  the  States  was  concerned,  federal, 
—  a  most  happy  compromise,  and  perhaps  the  only  one  ever 
made  in  America,  which,  on  the  whole,  sound  statesmanship 
ought  not  only  not  to  reject,  but  ought  to  regard  as  the  most 
valuable  and  admirable  feature  in  our  whole  system. 

§  45.  As  bearing  on  the  question  whether  we  are  a  nation  or 
not,  the  facts  stated  above  justify  the  following  observations  :  — 

1.  The  fact  that  the  government  under  which  we  live,  founded 
by  the  existing  Constitution,  is  national  only  in  part,  does  not 
prove  that  we  are  not  now,  or  were  not,  at  and  before  the  time 
of  its  formation,  a  nation.    It  is  evidence  merely  that,  if  we  had 
been  a  nation  before  we  formed  it,  it  had  not  been  deemed  ex 
pedient  to  establish  a  government  in  which  the  principle  of  our 
nationality  should  be  prominently  asserted ;  but,  on  the  contrary, 
that  the  nation  should  forego  its  right  to  found  a  single  estab 
lishment  by  which  to  govern  itself  as  a  whole,  and  should  per 
mit  the   peoples  of   the   several    States  to    exercise   in   ample 
measure,  but  still  in  subordination  to  it,  self-government,  so  far 
as  concerned  their  local  affairs. 

2.  The  fact,  on  the  other  hand,  that  the  general  government 
was,  in  its  inception,  national  to  any  extent,  is  conclusive  evi 
dence  that  there  was  a  nation  back  of  it  as  its  founder.     It  is 
impossible  to  escape  from  this  conclusion.     It  is  only  a  nation 
that  can  found  a  national  government,  or  a  government  of  which 
substantive  features  are  national,  to  continue  forever,  for  it  is 

1  See  the  masterly  exposition  of  the  mixed  character  of  the  government 
founded  by  the  Constitution,  made  by  Madison,  in  the  Federalist,  No.  39. 


JUDICIAL  DECISIONS.  47 

incredible  that  many  distinct  communities,  not  become  one  in 
sentiment,  opinion,  and  physical  circumstances,  to  such  an  ex 
tent  as  to  render  an  entirely  separate  existence  impossible,  should 
ever  consent  to  such  a  government.  The  leading  points  in  fhp 
definition  of  a  nation  are,  first,  that  there  is  such  a  unity  of 
blood,  of  interest,  and  ot  leeling,  in  its  component  parts,  tfiat 
th'ey  fly  together  by  a  i'orce'ol  attraction  that  is  piALUUally  hTe^ 
ststible, —  they  must  live  a  common  life;  and,  secondly,  that 
there  is  such  an  identity  in  their  situation,  in  relation  to  other 
communities,  and  consequently  in  the  estimation  in  which  they^ 
are  neia  and  in  the  dangers  which  threaten  them,  that  they  can- 
jioT  live  asunder.  Both  of  these  points  concurred  in  the  system 
founded  by  the  Constitution  of  1787.  Our  fathers  must,  as  they 
expressed  it,  "  join  or  die ; "  that  is,  they  were  impelled  by  every 
consideration  that  can  draw  men  together,  —  the  ties  of  blood, 
language,  religion,  common  interest,  and  common  glory,  —  to  live 
together ;  and  it  was  impossible,  on  account  of  inevitable  border 
wars,  carried  on  from  ambition  or  revenge,  and  from  the  greed 
of  foreign  nations,  that  they  should  live  apart. 

§  46.  There  remains  still  another  source  of  evidence  bearing 
on  the  question  of  our  nationality,  namely,  judicial  decisions  and 
the  opinions  of  statesmen  and  publicists  subsequent  to  the  for 
mation  of  the  existing  Constitution.  From  the  multitude  of 
authorities  of  the  kind  referred  to,  I  shall  select  but  a  few,  and 
those  mainly  of  an  early  date,  bearing,  some  on  the  question  of 
our  nationality  and  some  directly  on  the  question  of  the  locus  of 
the  powers  of  sovereignty  in  the  United  States. 

In  1793,  during  Washington's  administration,  the  question 
arose  in  the  Supreme  Court  of  the  United  States,  directly  and 
unequivocally,  where  rests  the  sovereignty  in  the  United  States? 
Does  it  reside  in  the  States  or  in  the  government  of  the  United 
States,  or,  finally,  is  it  lodged  in  the  people  of  the  United  States  ? 

The  question  arose  thus :  In  the  case  of  Chisholm,  executor, 
a  citizen  of  South  Carolina,  v.  The  State  of  Georgia,  a  motion 
was  made  by  the  Attorney-General,  of  counsel  for  the  plaintiff 
in  that  court,  requiring  the  State  of  Georgia  to  cause  an  appear 
ance  to  be  entered  therein,  in  her  behalf,  on  or  before  a  day 
named,  or,  in  default  thereof,  that  judgment  go  against  the  State 
by  default.  The  State  refused  to  appear  formally,  but  counsel 
represented  her  informally,  and  protested  against  the  jurisdiction 


48  JUDICIAL  DECISIONS. 

of  the  court  to  require  the  State  to  appear  before  it,  on  the 
ground,  with  others,  that  she  was  a  sovereign  State,  and  so,  not 
suable  by  a  citizen  of  another  State  in  the  courts  of  the  Union,  or 
elsewhere,  except  in  her  own  courts,  without  her  own  consent. 
The  nearly  unanimous  decision  of  the  five  judges  then  compos 
ing  the  court  was  against  the  State  of  Georgia  on  all  the  points 
raised.  I  shall  cite  mainly  from  the  opinion  delivered  by  Mr. 
Justice  Wilson,  one  of  the  profoundest  constitutional  judges 
that  ever  graced  the  bench  in  the  United  States,  not  inferior,  in 
*my  judgment,  to  Chief  Justice  Marshall  himself.  Justice  Wil 
son  said  :  "  This  is  a  case  of  uncommon  magnitude.  One  of 
the  parties  to  it  is  a  STATE,  certainly  respectable,  claiming  to 
be  sovereign.  The  question  to  be  determined  is,  whether  this 
State,  so  respectable,  and  whose  claim  soars  so  high,  is  amen 
able  to  the  jurisdiction  of  the  Supreme  Court  of  the  United 
States.  This  question,  important  in  itself,  will  depend  on  others 
more  important  still ;  and  may,  perhaps,  be  ultimately  resolved 
into  one  no  less  radical  than  this :  *  Do  the  people  of  the  Uni 
ted  States  form  a  NATION  ? '  "  1  After  a  luminous  exposition  of 
the  various  meanings  of  the  term  state,  he  defines  sovereignty, 
and  proceeds  :  "  As  a  citizen,  I  know  the  government  of  that 
State  (Georgia)  to  be  republican;  and  my  short  definition  of 
such  a  government  is,  one  constructed  on  this  principle,  —  that 
the  supreme  power  resides  in  the  body  of  the  people.  As  a 
judge  of  this  court,  I  know,  and  can  decide  upon  the  knowledge, 
that  the  citizens  of  Georgia,  when  they  acted  upon  the  large 
scale  of  the  Union,  as  a  part  of  the  '  people  of  the  United  States,' 
did  not  surrender  the  supreme  or  sovereign  power  to  that  State ; 
but,  as  to  the  purposes  of  the  Union,  retained  it  to  themselves. 
As  to  the  purposes  of  the  Union,  therefore,  Georgia  is  NOT  a  sov 
ereign  State."'2  In  another  part  of  the  same  opinion,  the  learned 
judge  makes  the  following  important  observation  :  "  To  the 
Constitution  of  the  United  States  the  term  sovereign  is  totally 
unknown.  There  is  but  one  place  where  it  could  have  been  used 
with  propriety.  But,  even  in  that  place,  it  would  not,  perhaps, 
have  comported  with  the  delicacy  of  those  who  ordained  and 
established  that  Constitution.  They  might  have  announced 
themselves  "  SOVEREIGN  "  people  of  the  United  States.  But, 

1  Chisholm,  Ex'r,  v.  State  of  Georgia,  2  Dall.  453. 

2  Id.  457. 


OPINIONS   OF   STATESMEN,    HISTORIANS,    AND   PUBLICISTS.        49 

serenely  conscious  of  the  fact,  they  avoided  the  ostentatious, 
declaration."  1  Concluding  an  exhaustive  examination  of  the 
Constitution,  Justice  Wilson  thus  announces  his  opinion  on 
the  ultimate  question  with  which  he  began,  Are  we  a  nation  ? 
"  Whoever  considers,  in  a  combined  and  comprehensive  view, 
the  general  texture  of  the  Constitution,  will  be  satisfied  that  the 
people  of  the  United  States  intended  to  form  themselves  into  a 
nation  for  national  purposes.  They  instituted  for  such  purposes 
a  national  government,  complete  in  all  its  parts,  with  powers 
legislative,  executive,  and  judiciary;  and,  in  all  those  powers, 
extending  over  the  whole  nation."  2 

§  47.  It  would  be  easy  to  fill  these  pages  with  judicial  opin 
ions  confirmatory  of  these  views,  but  space  will  not  permit.3  I 
confine  myself  to  such  as  were  delivered  before  the  heresies  of 
the  Kentucky  and  Virginia  resolutions  were  broached, — while 
the  government  of  the  Union  was  running  under  its  original 
impulse,  and  before  the  party  platform  had  been  elevated  into 
an  ulterior  constitution,  assuming  to  control  the  exposition  of 
that  which  the  fathers  had  formed. 

A  few  citations  will  now  be  made  of  the  opinions  of  states 
men,  historians,  and  publicists,  of  a  later  period,  to  whom  has 
been  accorded  authority  on  constitutional  questions.  Thus, 
Washington,  in  a  letter  of  June  8,  1783,  said  :  "  It  is  only  in  our 
united  character  that  we  are  known  as  an  empire,  tnat  our  inae^ 
pendence  is  acknowledged,  that  our  power  can  be  regarded,  or 
our  credit  supported  abroad."4  So,  still  more  explicitly,  in  his 
first  inaugural  address  of  April  6,  1789,  he  said :  "  Every  step 
by  which  they"  (the  United  States)  "have  advanced  to  the 
character  of  an  independent  nation,  seems  to  have  been  distin 
guished  by  some  token  of  providential  agency."  5  In  his  his 
tory  of  the  American  Revolution,  published  in  1789,  and  after 
wards  in  his  history  of  the  United  States,  Dr.  Ramsay  says : 
"  The  act  of  independence  did  not  hold  out  to  the  world  thir- 

1  Chisholm,  Ex'r,  v.  State  of  Georgia,  2  Dall.  454. 

a  Id.  465.  See  also  the  opinions  in  the  same  case  of  Justices  Gushing  and 
Blair,  and  of  Chief  Justice  Jay. 

3  See,  on  the  whole  subject,  Martin  v.  Hunter,  1  Wheat.  304  (324)  ;  McCul- 
lough  v.  The  State  of  Maryland,  4  Wheat.  316. 

4  "5  Marsh.  Washington,  p.  48. 

5  Presidential  Speeches,  p.  31. 

4 


50        OPINIONS   OF   STATESMEN,    HISTORIANS,   AND   PUBLICISTS. 

teen  sovereign  States,  but  a  common  sovereignty  of  the  whole 
in  their  united  capacity." l  So,  General  C.  C.  Pinckney,  in  a 
debate  in  the  South  Carolina  House  of  Representatives,  in 
1788,  speaking  of  the  Declaration  of  Independence,  said  :  "  This 
admirable  manifesto  sufficiently  refutes  the  doctrine  of  the  indi 
vidual  sovereignty  and  independence  of  the  several  States.  In 
that  declaration  the  several  States  are  not  even  enumerated,  but 
after  reciting,  in  nervous  language,  and  with  convincing  argu 
ments,  our  right  to  independence,  and  the  tyranny  which  com 
pelled  us  to  assert  it,  the  declaration  is  made  in  the  following 
words The  separate  independence  and  individual  sover 
eignty  of  the  several  States  were  never  thought  of  by  the  en 
lightened  band  of  patriots  who  framed  this  declaration.  The 
several  States  are  not  even  mentioned  by  name  in  any  part,  as 
if  it  was  intended  to  impress  the  maxim  on  America,  that  our 
freedom  and  independence  arose  from  our  union,  and  that,  with 
out  it,  we  never  could  be  free  or  independent.  Let  us,  then, 
consider  all  attempts  to  weaken  this  Union,  by  maintaining  that 
each  State  is  separately  and  individually  independent,  as  a  spe 
cies  of  political  heresy,  which  can  never  benefit  us,  but  may 
bring  on  us  the  most  serious  distresses." 2  Charles  Pinckney, 
also,  in  his  observations  on  the  plan  of  government  submitted 
by  the  Federal  Convention,  said :  "  The  idea,  which  has  been 
falsely  entertained,  of  each  being  a  sovereign  State,  must  be 
given  up,  for  it  is  absurd  to  suppose  that  there  can  be  more< 
than  one  sovereignty  within  a  government." 3 

§  48.  Coming  down  to  later  times,  I  shall  first  cite  the  opinion 
of  Mr.  Grimke,  a  South  Carolinian  without  guile  and  of  emi 
nence  not  inferior  to  that  of  the  great  names  of  the  Revolution. 
Commenting  on  the  opinions  of  the  two  Pinckney s,  given  in 
the  last  section,  in  the  celebrated  "  allegiance  cases,"  argued 
before  the  Court  of  Appeals  of  South  Carolina,  in  1834,  Mr. 
Grimke  said :  "  I  do  not  fully  agree  with  either  of  the  Pinck- 
neys,  but  certainly  the  truth  that  the  "United  States  constitute 
one  nation,  and  that  the  States  are  not  nations,  is  found  in  vari 
ous  forms  scattered  all  along  the  highway  which  our  country  has 
been  travelling  since  1776.  It  would  be  difficult  to  find  his- 

1  Ramsay's  Hist.  U.  S.  Vol.  UI.  pp.  174,  175. 

2  4  Ell.  Del.  p.  301. 

3  Quoted  by  Mr.  Grimke,  arguendo,  in  2  Hill's  S.  C.  R.  57. 


THE   STATES   WERE   NEVER   SOVEREIGN.  51 

torical  evidence  on  any  point  more  full,  particular,  and  various." 
To  the  same  effect,  Chancellor  Kent,  speaking  of  the  colonies 
in  1776,  in  his  Commentaries,  says  :  "  Gradually  assuming  all 
the  powers  of  national  sovereignty,  they  at  last,  on  the  4th  of 
July,  1776,  took  a  separate  and  equal  station  among  the  na 
tions  of  the  earth,  by  declaring  the  united  colonies  to  be  free  and 
independent  States."  1  So,  John  Quincy  Adams,  referring  to 
the  same  declaration,  in  1831,  said :  "  By  the  Declaration  of 
Independence,  the  people  of  the  United  States  had  assumed 
and  announced  to  the  world  their  united  personality  as  a  nation, 
consisting  of  thirteen  independent  States.  They  had  thereby 
assumed  the  exercise  of  primitive  sovereign  power;  that  is  to 
say,  the  sovereignty  of  the  people."  2  Justice  Story  makes  a 
similar  observation.  "  From  the  moment,"  he  says,  "  of  the 
declaration  of  independence,  if  not  for  most  purposes  at  an 
antecedent  period,  the  united  colonies  must  be  considered  as 
being  a  nation  de  facto,  having  a  general  government  over  it 
created,  and  acting  by  the  general  consent  of  the  people  of  all 
the  colonies."  3  These  authorities  are  of  great  interest,  as  indi 
cating  that  the  point  of  time  when  we  first  announced  ourselves 
to  be  a  nation,  preceded  the  establishment  of  the  present  Consti 
tution  by  about  thirteen  years.  We  were,  then,  a  nation  during 
all  the  long  eclipse  of  the  Confederation,  whilst  unwise  jealousy 
was  preventing  the  constituent  peoples  of  the  Union  from  ad 
mitting  in  their  government  the  most  salient  and  the  most 
salutary  fact  of  their  history,  namely,  that  they  were  one  people 
forever,  until  driven  to  do  so  by  the  overwhelming  pressure  of 
events. 

§  49.  So  far,  then,  as  the  question,  Where  does  the  sovereign 
power  in  the  United  States  reside  ?  depends  upon  the  other 
question,  Are  we  a  nation  ?  we  are  entitled  to  affirm  that  that 
power  resides  in  the  people  of  the  United  States  constituting  the 
American  nation.  Before  formally  drawing  that  conclusion, 
however,  I  desire  to  refer  to  a  few  authorities,  from  which  it 
may  be  gathered  that  there  has  never  been  a  time  in  our  history 
when  the  States  were  sovereign ;  and  I  shall  do  so  at  some 
length,  because,  it  is  obvious  that  if  the  States  were  not  sover 
eign  at  any  time  before  the  establishment  of  the  present  govern- 

1  1  Kent's  Com.  208. 

2  Eulogy  on  Monroe,  in  Lives  of  Madison  and  Monroe,  p.  236. 

3  Story's  Com.  on  Const.  §  215. 


52  THE   STATES   WERE   NEVER   SOVEREIGN. 

ment,  they  cannot  be  so  now,  after  having  been  shorn  of  many 
powers  before  that  undoubtedly  exercised  by  them,  and  at  the 
same  time  not  reinforced  by  a  concession  of  new  ones. 

In  the  Federal  Convention,  in  1787,  Mr.  Madison,  as  reported 
by  Mr.  Yates,  delegate  from  New  York,  said :  "  There  is  a  gra 
dation  of  power  in  all  societies,  from  the  lowest  corporation  to 
the  highest  sovereign.  The  States  never  possessed  the  essential 
rights  of  sovereignty.  These  were  always  vested  in  Congress. 
Their  voting,  as  States,  in  Congress,  is  no  evidence  of  sover 
eignty.  The  State  of  Maryland  voted  by  counties.  Did  this 
make  the  counties  sovereign  ?  The  States  at  present  are  only 
great  corporations,  having  the  power  of  making  laws,  and  these 
are  effectual  only  if  they  are  not  contradictory  to  the  general 
Confederation.  The  States  ought  to  be  placed  under  control  of 
the  general  government,  at  least  as  much  so  as  they  formerly 
were  under  the  King  and  British  Parliament."  l 

§  50.  The  opinion  expressed  thus  in  the  Convention,  that  the 
States  had  never  been  sovereign,  was  in  effect  confirmed  by  the 
Supreme  Court  of  the  United  States  in  1795,  in  a  case  of  prize, 
occurring  under  resolutions  of  the  old  Congress  of  the  Confed 
eration,  passed  in  1775.  One  question  made  in  the  case  was, 
whether  that  body  had  power  to  authorize  the  taking  of  prizes, 
which  properly  belongs  to  the  sovereign  power.  It  was  decided 
that  it  had.  Justice  Paterson  said  :  "  The  question  first  in  order 
is,  whether  Congress,  before  the  ratification  of  the  Articles  of 
Confederation,  had  authority  to  institute  such  a  tribunal," 
("  Commissioners  for  Appeals,"  for  prize  cases,)  "  with  appel 
late  jurisdiction  in  cases  of  prize?  Much  has  been  said  respect 
ing  the  powers  of  Congress The  powers  of  Congress 

were  revolutionary  in  their  nature,  arising  out  of  events,  ade 
quate  to  every  national  emergency,  and  coextensive  with  the 
object  to  be  attained.  Congress  was  the  general,  supreme,  and 
controling  council  of  the  nation,  the  centre  of  union,  the  centre 
of  force,  and  the  sun  of  the  political  system.  To  determine 
what  their  powers  were,  we  must  inquire  what  powers  they  ex 
ercised.  Congress  raised  armies,  fitted  out  a  navy,  and  pre 
scribed  rules  for  their  government.  Congress  conducted  all 

l  Yates'  Minutes,  in  Vol.  I.  of  Elliott's  Deb.  pp.  461,  462.  I  do  not  use  Mad 
ison's  report  of  the  same  debate  in  this  case,  because,  though  not  contradictory 
of  Yates,  it  is  very  brief. 


THE   STATES   WERE   NEVER   SOVEREIGN.  53 

military  operations,  both  by  land  and  sea.  Congress  emitted 
bills  of  credit,  received  and  sent  ambassadors,  and  made  trea 
ties;  Congress  commissioned  privateers These  high  acts 

of  sovereignty  were  submitted  to,  acquiesced  in,  and  approved 
of  by  the  people  of  America.  In  Congress  were  vested,  because 
by  Congress  were  exercised,  with  the  approbation  of  the  people, 
the  rights  and  powers  of  war  and  peace.  In  every  government, 
whether  it  consists  of  many  states  or  of  a  few,  or  whether  it  be 
of  a  federal  or  consolidated  nature,  there  must  be  a  supreme 
power  or  will ;  the  rights  of  war  and  peace  are  component  parts 
of  this  supremacy,  and  incidental  thereto  is  the  question  of 
prize.  The  question  of  prize  grows  out  of  the  nature  of  the 
thing.  If  it  be  asked,  in  whom,  during  our  Revolutionary  war, 
was  lodged,  and  by  whom  was  exercised,  this  supreme  author 
ity  ?  no  one  will  hesitate  for  an  answer.  It  was  lodged  in,  and 
exercised  by,  Congress ;  it  was  there  or  nowhere ;  the  States 
individually  did  not,  and  with  safety  could  not,  exercise  it."  l 
So  Chief  Justice  Jay,  in  a  case  in  the  same  court,  before  referred 
to,2  said :  "  The  Revolution,  or  rather  the  Declaration  of  Inde 
pendence,  found  the  people  already  united  for  general  purposes, 
and  at  the  same  time  providing  for  their  more  domestic  con 
cerns  by  State  Conventions,  and  other  temporary  arrangements. 
From  the  crown  of  Great  Britain  the  sovereignty  of  their  own 
country  passed  to  the  people  of  it.  .  .  .  The  people  .  .  .  con 
tinued  to  consider  themselves,  in  a  national  point  of  view,  as 
one  people  ;  and  they  continued  without  interruption  to  manage 
their  national  concerns  accordingly.  Afterwards,  in  the  hurry 
of  the  war  and  in  the  warmth  of  mutual  confidence,  they  made 
a  confederation  of  the  States  the  basis  of  a  general  govern 
ment.  Experience  disappointed  the  expectations  they  had 
formed  from  it,  and  then  the  people,  in  their  collective  and 

1  Penhallow  v.  Doane's  Administrators,  3  Dall.  54  (80).      As  the  learned 
judge  founds  what  he  calls  the  sovereignty  of  Congress  upon  the  acquiescence 
or  approbation  of  the  people,  and  implies  that,  without  it,  the  power  would  not 
have  belonged  to  that  body,  it  is  evident  that  he  is  in  error  in  lodging  sover 
eignty  with  Congress  at  all.     The  exercise  of  sovereign  powers  was  permitted  to 
that  body  by  the  people  of  the  United  Colonies,  who  were  the  true  sovereign ; 
(see  post,  §§  55,  56.)    This  error,  however,  does  not  affect  the  general  soundness 
of  his  argument,  which  in  effect  lodges  the  power  of  sovereignty  with  some 
other  than  the  States. 

2  Chisholm,  Ex'r,  v.  State  of  Georgia,  2  Dall.  419  (470). 


54  ALLEGIANCE   DEFINED. 

national  capacity,  established  the  present  Constitution.  It  is 
remarkable  that,  in  establishing  it,  the  people  exercised  their  own 
rights  and  their  own  proper  sovereignty ;  and,  conscious  of  the 
plenitude  of  it,  they  declared  with  becoming  dignity,  *  We  the 
people  of  the  United  States  do  ordain  and  establish  this  Consti 
tution.'  Here  we  see  the  people  acting  as  sovereigns  of  the 
whole  country,  and,  in  the  language  of  sovereignty,  establishing 
a  Constitution  by  which  it  was  their  will  that  the  State  govern 
ments  should  be  bound,  and  to  which  the  State  constitutions 
should  be  made  to  conform."  1 

§  51.  Conceding,  then,  that  we  are  a  nation,  the  answer  to  the 
question  with  which  we  started  some  pages  back  —  Where  re 
sides  the  sovereignty  in  the  United  States  ?  —  is  ready  to  our 
hand.  It  resides,  and  must  reside,  in  the  nation,  considered  as 
a  political  society  or  body  corporate.  Back  of  all  the  States  and 
of  all  forms  of  government  for  either  the  States  or  the  Union,  we 
are  to  conceive  of  the  NATION,  a  political  body,  one  and  indivis 
ible,  made  up  of  the  citizens  of  the  United  States,  without  dis 
tinction  of  age,  sex,  color,  or  condition  in  life.  In  this  vast 
body,  as  a  corporate  unit,  dwells  the  ultimate  power  denomi 
nated  sovereignty.  It  is  this  body  which  declared  itself,  by  the 
Continental  Congress,  and  under  the  name  of  the  "  United  Col 
onies,"  to  be  free  and  independent :  "  We,  therefore,  the  repre 
sentatives  of  the  United  States  of  America,  .  .  .  do,  in  the  name 
and  by  the  authority  of  the  good  people  of  these  Colonies,  declare 
that  these  United  Colonies  are  ...  free  and  independent  States," 
—  independent,  that  is,  of  the  crown  of  Great  Britain,  not  of 
each  other.  This  body  it  is  which  formed  the  government  of 
the  Confederation,  granting  to  it,  indeed,  few  powers,  and  still 
leaving  many  and  important  ones  to  the  peoples  of  the  sev 
eral  States  ;  and  it  is  this  which  afterwards,  as  we  have  seen, 
"  ordained  and  established  "  the  present  Constitution,  parcelling 
out  anew  and  in  different  measure,  the  powers  it  saw  fit  to 
grant  at  all ;  giving  to  the  government  of  the  Union  broad  na 
tional  powers,  making  its  laws  and  Constitution  supreme,  and 
leaving  to  the  peoples  of  the  States  other  powers  for  local  pur 
poses,  but  stamping  them  with  the  mark  of  inferiority,  as  the 
parts  are  severally  inferior  to  the  whole. 

§  52.  If  I  am  right  in  lodging  the  sovereign  power  in  the 
1  See  further  on  this  subject,  Story's  Com.  on  Const.  §§  210-216. 


QUASI  ALLEGIANCE  AND  QUASI  SOVEREIGNTY.        55 

nation,  the  perplexing   question  of   allegiance  is  easily  deter 
mined. 

Allegiance  (alligo)  is  for  the  citizen,  with  respect  to  the  state 
or  sovereign  society,  what  religion  (religo)  is  for  man,  with  re 
spect  to  God,  a  dutiful  recognition  of  the  bond  which  connects 
them,  in  their  relations  as  subject  and  sovereign.  Allegiance 
relates  to  a  temporal,  as  religion  does  to  a  spiritual  or  Divine, 
sovereign.  Accordingly,  as  it  would  be  sacrilege  for  a  man  to 
recognize  as  his  spiritual  sovereign  or  to  acknowledge  the  bond 
implied  in  the  term  religion  as  uniting  him  with  any  being  but 
God,  so  it  would  be  an  act  of  treason,  in  morals  if  not  in  law, 
for  a  citizen  to  recognize  as  entitled  to  sovereign  rights  —  that 
is,  to  render  allegiance  to  —  any  person  or  body,  but  the  true 
sovereign,  the  nation. 

It  is  true,  nevertheless,  in  the  United  States,  that  although 
the  nation  is  the  only  real  sovereign,  the  States  are  often  called 
sovereign.  But  this  use  of  the  word  is  proper  only  as  a  figure 
of  speech  employed  out  of  courtesy  to  numerous  and  dignified 
bodies  invested  with  the  exercise,  for  local  purposes,  of  impor 
tant  sovereign  powers.  The  States,  at  besty  are  but  quasi  sov 
ereign;  that  is,  on  account  of  their  permissive  supremacy  in 
local  State  affairs,  they  are  to  be  treated,  to  a  certain  extent,  as 
if  they  were  sovereign  ;  precisely  as  an  ambassador,  despatched 
to  a  foreign  court  and  there  representing  his  sovereign,  is  re 
ceived  and  honored,  on  account  of  his  office,  as  if  he  were  him 
self  the  sovereign. 

§  53.  To  this  quasi  sovereignty  corresponds  a  quasi  allegiance, 
which  every  citizen  owes  to  his  State,  in  subordination  to  his 
true  allegiance  to  the  nation.  This  spurious  allegiance,  how 
ever,  so  far  as  it  is  not  a  mere  act  of  courtesy,  is  another  name 
for  the  obedience  due  to  the  ministers  of  the  real  sovereign ;  the 
truth  being,  that,  in  rendering  obedience  to  the  government  of 
his  State,  a  citizen  of  the  United  States  is  paying  his  allegiance 
to  the  people  of  the  Union.  This  obedience  is  sometimes  styled 
a  "  qualified  allegiance,"  a  thing  as  absurd  as  a  qualified  om 
nipotence,  unless  by  it  be  meant  an  allegiance  which  is  not  real 
but  seeming ;  that  is,  an  act  of  obedience  which  would  be  one 
of  allegiance  were  the  body  to  which  it  is  paid  a  sovereign  body. 
Thusi  in  a  late  case  decided  by  the  Supreme  Court  of  the  Uni 
ted  States,  Justice  Grier  said:  "  Under  the  very  peculiar  Consti- 


56  HOW   SOVEREIGNTY   INHERES   IN    THE   NATION. 

tution  of  this  government,  although  the  citizens  owe  supreme 
allegiance  to  the  federal  government,  they  owe  also  a  qualified 
allegiance  to  the  State  in  which  they  are  domiciled."  l  Treason 
is  a  crime  against  sovereignty,  a  violation  of  one's  allegiance. 
Hence,  there  is  really  no  such  thing  as  treason  against  any  polit 
ical  body  in  the  Union  but  the  United  States.  If  a  State,  by  its 
courts,  punishes  treason,  it  must  be  not  as  treason  against  itself, 
but  as  treason  against  the  Union ;  and,  in  this  view,  the  propri 
ety  of  that  State  legislation  which  defines  treason  against  the 
State  and  affixes  to  it  particular  penalties,  is  doubtful.  It  would 
seem  that  the  only  principle  on  which  such  legislation  can  be 
sustained  is,  that  a  State  has  a  right,  under  its  general  power  of 
regulating  its  own  internal  police,  to  punish  acts  dangerous  to 
the  peace  and  safety  of  its  citizens,  giving  to  them  such  names 
as  it  pleases,  although  the  same  acts  may  constitute  treason 
against  the  United  States,  and  as  such  be  punishable  under  the 
laws  of  the  latter.  On  that  principle,  State  laws  have  been  sus 
tained  by  the  Supreme  Court  of  the  United  States,  affixing 
penalties  to  the  act  of  counterfeiting  the  coin  of  the  United 
States  and  other  offences  against  the  laws  of  the  Union ;  the 
same  acts  being  declared,  upon  different  grounds,  having  respect 
to  the  interests  of  each,  to  be  crimes  against  both  jurisdic 
tions.2 

§  54.  2.  I  come  now  to  consider  the  second  branch  of  the 
question  stated,  namely,  How  does  sovereignty  inhere  in  the 
people  of  the  United  States  ? 

1  Claimants  of  the  Schooner  Brilliant,  &c.,  Appellants,  v.  The  United  States, 
Am.  Law  Register,  Vol.  II.  (new  series)  334. 

2  See  Fox  v.  State  of  Ohio,  5  How.  432.      Also,  Moore  v.  The  People  of 
Illinois,  14  How.  R.  13.     Upon  the  whole  doctrine  of  allegiance,  in  relation  to 
both  the  States  and  the  United  States,  see  The  State  ex  rel  M'Cready  v.  Hunt, 
and  The  State  ex  rel.  M'Daniel  v.  M'Meekin,  (the  so-called  "  allegiance  cases,") 
2  Hill's  S.  C.  R.  1-282.      These  cases  arose  in   South  Carolina,  in  1834,  in 
connection  with  the  nullification  ordinances  of  the  convention  of  that  State,  and 
involved  the  whole  subject  of  sovereignty,  allegiance,  the  relation  of  the  States 
to  the  Union,  and  kindred  questions.     The  majority  of  the  court  held,  that  the 
oath  of  allegiance  prescribed  to  officers  of  the  militia  by  the  Act  of  1833,  "to 
provide  for  the  military  organization  of  this  State,"  was  "  unconstitutional  and 
void."     No  constitutional  question  has  ever  been  discussed  with  greater  ability 
and  learning  in  the  United  States,  than  were  those  raised  in  these  cases.     They 
were  argued  for  the  relators  by  Mr.  Grimke  and  Mr.  Petigru,  each  clarum  et 
venerabile  nomen. 


SOVEREIGNTY   UNDER  CONDITIONS.  57 

To  this  question  two  answers  may  be  given  :  — 

(a).  That  sovereignty  inheres  in  the  people  considered  simply, 
that  is,  as  a  unit,  without  conditions,  or  State  or  other  internal 
discriminations. 

(b).  That  it  inheres  in  the  people  only  as  discriminated  into 
and  acting  in  groups  by  States. 

To  determine  which  of  these  answers  is  the  correct  one,  in 
my  judgment,  we  need  but  consider  what  is  involved  in  the  con 
ception  of  sovereignty  inhering  in  a  society  under  conditions, 
as  where  the  sovereign  body  is  regarded  as  capable  of  acting  as 
such  only  when  discriminated  into  groups,  by  States,  or  other 
wise. 

It  is  evident,  that  any  particular  mode  of  existence  exhibited 
by  sovereignty,  except  that  of  inhering  in  the  political  body  as 
a  unit,  must  be  the  result  of  voluntary  regulation  by  the  sover 
eign  itself;  be,  in  other  words,  a  self-imposed  limitation,  enforce 
able  only  by  moral  sanctions.  For,  to  suppose  that  sovereignty 
so  inheres  in  the  political  body  that  it  can  manifest  itself  only 
through  some  particular  instrument,  or  in  some  particular  mode, 
is  to  rob  the  sovereign  of  its  essential  attribute,  that  of  perfect 
freedom,  or  the  power  of  absolute  self-determination.  The  fact 
that  a  particular  instrument  or  mode  has  become  established, 
may  furnish  a  weighty  moral  reason  why  it  should  be  used  or 
followed;  but  to  suppose  a  power  anywhere  existing  of  compel 
ling  the  employment  of  either,  would  be  to  subject  the  sovereign 
to  some  extrinsic  human  superior,  that  is,  to  make,  not  it,  but 
another,  the  real  sovereign. 

§  55.  Again :  the  terms  modes  and  instruments,  when  used  in 
relation  to  the  manifestation  of  sovereignty,  merely  indicate  how 
sovereignty  is  exercised;  refer,  in  short,  to  systems  of  govern 
ment  established  by  the  sovereign,  or  conceived  to  be  within  its 
competence  to  establish. 

To  contend,  therefore,  that  sovereignty  so  exists  in  the  sover 
eign  body  that  it  is  exeroisable  only  in  some  particular  mode,  or 
through  some  particular  instrument,  is  to  say,  that  when  govern 
ment  has  been  once  ordained  by  sovereign  authority,  the  latter 
ceases,  with  respect  to  that  government,  to  be  any  longer  sover 
eign  ;  in  other  words,  that,  in  the  act  of  creation,  sovereignty 
leaves  the  creator,  and  takes  up  its  abode  with  the  creature. 

The  error  upon  which  such  an  hypothesis  rests,  is  that  of 


58  POSSIBLE   EXERCISE   OP   SOVEREIGNTY. 

taking  the  secondary  forms  into  which  the  sovereign  body  re 
solves  itself  as  being  severally  the  primary,  substantial,  and 
necessary  form  of  sovereignty  itself.  On  the  contrary,  that  only 
can  be  the  ultimate  and  essential  form,  which  precedes  the  estab 
lishment  and  survives  the  dissolution  of  all  those  special  adjust 
ments  needed  to  bring  into  regular  exercise  the  powers  of  sover 
eignty,  which  constitute  government. 

§  56.  To  a  full  comprehension  of  the  analysis  exhibited  in 
the  last  two  sections,  it  is  necessary  to  consider  further,  with 
reference  to  some  particular  form  of  government,  as  that  of  the 
United  States,  what  is  signified  by  the  terms,  the  exercise  of  sov 
ereign  powers. 

By  the  exercise  of  sovereign  powers  is  meant  either,  1.  The 
regular,  which,  historically  considered,  is  commonly,  also,  in 
constitutional  governments,  the  actual  exercise  of  it ;  and,  2.  The 
possible  exercise  of  it,  —  a  field  of  indefinite  extent,  commensu 
rate  with  the  needs  of  the  sovereign  body,  as  determined  by  itself. 

To  be  regular,  unquestionably,  the  exercise  of  sovereignty 
must  be  conformable  to  established  rule  (regula) ;  that  is,  to  the 
Constitution  and  laws  at  the  time  in  force.  This  is  true  by 
whomsoever  it  be  exercised ;  that  is,  whether  by  the  sovereign 
body,  acting  as  an  organic  whole,  directly,  —  if  that  be  possible, 
—  or  by  functionaries,  by  itself  charged  with  governmental  duties. 

The  possible  exercise  of  sovereignty,  on  the  other  hand,  as 
contradistinguished  from  the  regular  exercise  of  it,  is  that  which, 
conforming  to  no  rule,  would  be  exhibited  were  the  sovereign 
body  to  manifest  its  powers  of  sovereignty  independently,  or  in 
violation,  of  an  established  rule,  following,  instead,  its  own  ar 
bitrary  will.  This  exercise  of  sovereignty  is  irregular,  and  is  to 
be  characterized  simply  as  such,  or  as  revolutionary,  according 
to  the  extent  of  the  irregularity. 

But  by  the  word  possible,  as  applicable  to  this  exercise  of 
sovereignty,  is  meant  possible  only  in  fact,  not  legally  possible. 
The  possibility  in  fact  of  such  an  exercise  of  sovereignty,  how 
ever,  is  a  circumstance  of  vast  significance,  under  all  forms  of 
government  —  which  it  would  be  well  if  statesmen  kept  more 
constantly  in  mind.  In  the  United  States,  doubtless,  if  there  is 
anywhere  in  it  lodged  a  truly  sovereign  power,  there  lies,  out 
side  the  narrow  limits  which  bound  the  regular  exercise  of  it,  a 
wide  space,  in  which  the  sovereign  may  expatiate  in  the  exercise 


SOVEREIGNTY,   HOW   REGULARLY   EXERCISED.  59 

of  all  possible  sovereign  powers,  as  freely  as  in  any  government 
under  the  sun.  In  a  word,  then,  to  the  sovereign  all  things  are 
in  fact  possible  ;  all  things  may,  according  to  circumstances, 
become  rightful  or  justifiable  ;  though  many  things,  which  under 
the  circumstances  are  rightful  or  justifiable  on  moral  grounds, 
may  be  irregular  or  revolutionary.  The  wider  field,  moreover, 
is  to  be  trodden  only  by  the  sovereign  body  itself,  or  under  its 
immediate  command:  the  narrower  field — that  of  established 
rules  of  action  —  is  that  of  government,  which  is  but  one  phase 
of  existence  voluntarily  assumed  by  the  sovereign  body,  and 
which,  however  solemnly  it  may  have  bound  itself  to  maintain 
it,  it  may,  in  fact,  discontinue  at  will. 

§  57.  Applying  these  principles  to  the  United  States,  with  a 
view  to  ascertain  whether  sovereignty  inheres  in  the  people  of 
the  United  States  considered  simply  as  a  corporate  unit,  or  only 
as  discriminated  into  the  subordinate  groups,  known  as  States, 
the  problem  seems  to  be  of  easy  solution. 

Judging  by  the  regular  exercise  of  sovereign  powers  in  the 
United  States,  —  that  is,  by  the  Constitution  of  government  now 
established,  —  sovereignty  would  seem,  as  a  practical  power,  to 
reside  in  the  people,  as  discriminated  into  the  groups  known  as 
States.  Of  the  numerous  circumstances  indicating  this  I  shall 
mention  but  two.  The  first  is,  that  by  the  Constitution  of  1787 
the  electoral  function  for  the  Union  is  performed,  not  by  the 
electors  acting  as  a  single  body,  under  regulations  established  by 
the  legislature  of  the  Union,  the  total  result  to  be  determined  by 
a  simple  majority  of  all  the  votes  cast,  but  by  the  electors  dis 
criminated  into  groups  conterminous  with  the  States,  voting  in 
accordance  with  State  laws,  the  total  result  to  be  determined  by 
grouping  the  several  State  majorities,  sometimes  giving  them  a 
weight  proportionate  to  their  respective  numbers,  and  sometimes 
an  equal  weight,  without  regard  to  their  numbers. 

The  second  circumstance  is,  that  by  the  same  Constitution, 
the  power,  par  excellence  a  sovereign  power,  of  amending  that 
instrument,  instead  of  being  confided  to  the  people  or  to  a  Con 
vention  of  the  people  of  the  Union,  acting  directly,  as  a  sover 
eign  unit,  is  given  to  them  acting  indirectly,  either  through  Con 
gress,  or  through  a  national  Convention,  called  by  Congress  at 
the  instance  of  the  State  legislatures,  and  that,  by  way  of  rec 
ommendation  merely,  such  action  to  be  followed,  in  either 


60      CAPACITY   IN   WHICH   THE   STATES   EXERCISE   SOVEREIGNTY. 

case,  by  the  ratification  of  the  State  legislatures  or  of  Con 
ventions  called  in  the  several  States,  as  Congress  may  have 
determined.  Thus  the  States  seem  to  be  inextricably  inter 
woven  with  the  machinery  provided  for  the  exercise  of  the 
most  fundamental  right  of  sovereignty,  that  of  forming  the  or 
ganic  law.  But  it  is  to  be  noted  that  it  is  with  the  regular 
exercise  of  that  power  that  they  are  thus  interwoven.  The 
American  nation,  by  which  that  system  was  established,  can 
undo  the  work  of  1787,  if  not  in  pursuance  of  its  own  pro 
visions,  then  irregularly,  being  still,  as  before  the  formation  of 
the  Constitution,  a  sovereign  political  unit,  the  product  of  vital 
forces  which  had  been  active  and  accumulating  long  before  it 
deemed  it  expedient  to  form  that  instrument.  Although,  in  a 
moment  of  weakness,  it  saw  fit  to  curtail  its  own  powers,  in 
relation  especially  to  the  sovereign  act  of  amending  the  Con- 
titution,1  still,  if  in  fact  the  nation  should  outgrow  the  system 
thus  established,  and  should  by  a  general  movement  institute  a 
change  which  should  not  only  violate  the  provisions  of  that  in 
strument,  in  reference  to  State  equality  in  the  Senate,  but  abolish 
the  States  entirely,  it  would  be  within  its  actual  competence  as 
a  sovereign  body  so  to  do,  though,  from  a  constitutional  point 
of  view,  it  would  be,  perhaps,  a  revolutionary  act.  The  point, 
in  a  word,  to  be  kept  in  mind,  is,  that  the  present  Constitution, 
determining  the  exercise  of  sovereign  power  by  the  servants  of 
the  sovereign,  is  not  a  finality  for  any  body  but  those  servants, — 
certainly  not  for  the  people  of  the  United  States,  however  they 
may  have  fettered  themselves  by  the  fundamental  act  of  1787. 
As  the  Constitution,  as  an  objective  fact,  develops  with  the 
growth  of  the  nation,  the  Constitution,  as  an  instrument  of 
evidence  of  that  fact,  must  develop  correspondingly.  If  by  its 
terms  it  cannot  do  so,  shall  the  nation  be  bound  by  it  ?  In  law, 
yes.  As  a  matter  of  practical  statesmanship,  no. 

§  58.  Assuming,  then,  that  by  the  present  Constitution  of  the 
United  States,  sovereignty,  so  far  as  relates  to  its  regular  ex 
ercise,  inheres  in  the  people  of  the  United  States,  as  discrim 
inated  into  groups  by  States,  a  word  is  necessary  as  to  the 
CAPACITY  in  which  those  groups  act  in  performing  the  function 
indicated. 

1  See  the  concluding  part  of  Article  V.  of  the  Constitution,  relating  to 
equality  of  representation  of  States  in  the  United  States  Senate. 


CAPACITY   IN    WHICH   THE   STATES   EXERCISE   SOVEREIGNTY.       61 

We  have  seen  in  a  former  section  that  the  States  partici 
pate  in  the  act  of  amending  the  fundamental  law  in  a  double 
capacity:  first,  as  State  governments  —  the  State  legislatures 
applying  to  Congress  to  call  a  Convention  for  proposing  amend 
ments,  or  ratifying  such  as  have  been  proposed ;  and,  secondly, 
as  subordinate  peoples,  together  composing  the  people  of  the 
United  States,  —  as,  in  case  of  Conventions  meeting  in  the 
several  States  to  ratify  proposed  amendments.  In  this  last  case, 
however,  the  two  capacities  would  be  blended,  as  the  call  of 
such  Conventions  would  probably  issue  from  the  respective 
State  legislatures,  and  not  from  Congress. 

The  same  distinctions  run  through  the  whole  Constitution. 
Thus  a  large  part  of  the  legislative,  and  a  corresponding  part 
of  the  executive  and  judicial  functions  required  in  the  United 
States,  have  been  committed  by  the  sovereign  body  of  the  Union, 
the  nation,  to  the  States,  as  governments  organized  in  subordina 
tion  to  the  Union ;  I  refer  to  the  powers  of  local  legislation  and 
administration,  sometimes  erroneously  regarded  as  belonging 
originally,  and  as  of  sovereign  right,  to  the  States.  Properly 
considered,  these  are  a  branch  of  the  sovereign  powers  of  the 
Union,  of  which,  by  the  present  Constitution,  the  exercise  has 
been  delegated  to  the  State  governments. 

In  like  manner,  the  State  governments  are  charged  with  the 
exercise  of  sovereign  powers,  with  reference  to  the  Union,  in 
the  election  of  senators  through  the  State  legislatures;1  in  the 
issuance  of  writs  of  election  to  fill  vacancies  in  Congress,  by  the 
State  executives  ;2  in  the  appointment  of  officers  for  the  national 
militia,  given  in  general  terms  "  to  the  States ; "  and  in  giving 
their  consent  to  the  building  of  forts  and  arsenals,  and  the  erec 
tion  of  new  States,  by  Congress,  within  the  jurisdiction  of  exist 
ing  States.3 

On  the  other  hand,  in  several  particulars  contained  in  the 
Constitution,  the  States,  as  subordinate  peoples,  without  imme 
diate  reference  to  their  organization  into  State  governments, 
have  been  charged  with  the  exercise  of  sovereign  powers  for  the 
Union ;  as  in  choosing  the  President  of  the  United  States, 
through  electors  chosen  by  such  peoples  directly,4  and  in  electing 

1  Art.  I.  sec.  3,  cl.  1,  Const.  U.  S. 

2  Art.  I.  sec.  2,  cl.  4,  Const.  U.  S. 

3  Art.  I.  sec.  8,  cl.  17,  and  Art.  IV.  sec.  3,  cl.  1,  Const.  U.  S. 
*  Art  II.  sec.  1,  Const.  U.  S. 


62  YIEW    OP   AUSTIN. 

the  members  of  the  national  House  of  Representatives,  a  duty 
committed  to  "  the  people  of  the  several  States."  J 

§  59.  In  all  these  cases,  however,  the  circumstance  already 
mentioned  is  to  be  noted,  that  the  States,  considered  either  as 
parts  of  the  national  people  or  as  State  governments,  in  no  case 
act  in  either  of  those  capacities  purely  and  simply;  the  framers 
of  the  Constitution  seeming  carefully  to  have  connected  the  ex 
ercise  of  sovereign  powers  by  them  in  one  capacity  with  their 
exercise  of  them  in  the  other  capacity,  as  if  to  make  them,  as 
parts  of  the  national  people,  checks  upon  themselves  when  act 
ing  as  State  governments.  Without  stopping  to  cite  instances 
of  this  system  of  internal  checks,  I  observe  that  the  States,  in 
both  capacities,  are,  by  the  Constitution,  subjected  to  checks  in 
the  form  of  direct  constitutional  prohibitions,  which  are  external 
to  themselves  as  States,  being  limitations  upon  their  exercise  of 
sovereign  powers,  imposed  by  the  people  of  the  United  States.2 
Admitting,  then,  that  the  powers  of  sovereignty,  under  the  pres 
ent  Constitution,  are  exercisable  only  by  the  people  as  discrimi 
nated  into  States,  and,  as  such,  acting  in  the  two  capacities  of 
State  peoples  and  State  governments,  the  fact  that  such  limita 
tions  have  been  imposed  is  a  further  and  an  incontestable  proof 
that  the  States  are  not  themselves  in  any  capacity,  either  separ 
ate  or  united,  the  sovereign  power  in  the  Union,  but  only  the 
depositaries  for  the  time  being  of  such  sovereign  powers  as  the 
sovereign  has  chosen  to  have  exercised. 

§  60.  The  theory,  nevertheless,  that  sovereignty  inheres  in  the 
people  of  the  United  States,  not  simply,  or  as  a  political  unit,  but 
as  discriminated  into  States,  has  the  sanction  of  high  authority. 
Although  I  believe  this  to  be  an  error,  arising  from  not  distin 
guishing  the  sovereign  body  from  the  system  of  functionaries  in 
whom  is  temporarily  vested  by  the  sovereign  the  exercise  of  sov 
ereign  powers,  I  shall  give  extracts  from  the  writings  of  one  or 
two  publicists  who  hold  the  view  indicated. 

Mr.  John  Austin,  in  his  work,  "  The  Province  of  Jurispru 
dence  Determined,"  contrasting  what  he  calls  supreme  federal 
governments  with  permanent  confederacies  of  supreme  govern 
ments^  says  of  the  government  of  the  United  States :  — 

1  Art.  I.  sec.  2,  cl.  1,  Const.  U.  S.     On  the  whole  subject  discussed  in  the 
foregoing  sections,  see  Federalist,  No.  39. 

2  See  Art.  I.  sees.  8,  9,  and  10,  Const.  U.  S. 


VIEW   OP   DR.   BROWNSON.  63 

"  The  supreme  government  of  the  United  States  of  America 
agrees  (I  believe)  with  the  foregoing  general  description  of  a 
supreme  federal  government.  I  believe  that  the  common  gov 
ernment,  consisting  of  the  Congress  and  the  President  of  the 
United  States,  is  merely  a  subject  minister  of  the  United  States 
governments.  I  believe  that  none  of  the  latter  is  properly  sov 
ereign  or  supreme,  even  in  the  state  or  political  society  of  which 
it  is  the  immediate  chief.  And  lastly,  I  believe  that  the  sover 
eignty  of  each  of  the  states,  and  also  of  the  larger  state  arising 
from  the  Federal  Union,  resides  in  the  states'  governments,  as 
forming-  one  aggregate  body ;  meaning  by  a  state's  government, 
not  its  ordinary  legislature,  but  the  body  of  its  citizens  which 
appoints  its  ordinary  legislature,  and  which,  the  Union  apart,  is 
properly  sovereign  therein.  If  the  several  immediate  chiefs  of 
the  several  United  States  were  respectively  single  individuals, 
or  were  respectively  narrow  oligarchies,  the  sovereignty  of  each 
of  the  states,  and  also  of  the  larger  state  arising  from  the  Fed 
eral  Union,  would  reside  in  those  several  individuals,  or  would 
reside  in  those  several  oligarchies,  as  forming  a  collective 
whole."  i 

There  is,  perhaps,  some  ambiguity  in  this  passage,  as  it  is  not 
clear  whether,  by  the  body  of  the  citizens  of  a  State  "  which  ap 
points  its  ordinary  legislature,"  the  author  means  the  totality  of 
its  citizens,  forming  a  corporate  unit,  which,  "  the  union  apart," 
virtually  appoints  the  legislature,  or  the  body  of  the  electors, 
which  immediately  and  formally  appoints  it.  If  the  former  was 
intended,  his  theory  was  clearly  what  I  have  supposed  above ; 
if  the  latter,  it  was  the  wholly  untenable  one,  that  sovereignty 
in  the  United  States  inheres  in  the  electors  or  voting  people  of 
the  respective  States,  considered  "  as  forming  a  collective  whole," 
—  a  theory  which  has  the  sanction  of  so  eminent  an  authority 
as  Mr.  Kurd.2 

§  61.  A  similar  view  of  the  mode  in  which  sovereignty  inheres 
in  the  people  of  the  United  States  has  been  lately  propounded 
by  Mr.  Brownson,  with  his  characteristic  force  and  ingenuity,  in 
his  work,  "  The  American  Kepublic."  Having  located  political 
sovereignty,  in  general,  in  the  people,  "  not  individually,  but 
collectively,  as  civil  and  political  society,"  he  proceeds  to  deter- 

1  John  Austin,  The  Province  of  Jurisprudence  Determined,  Vol.  I.  p.  222. 

2  Kurd,  Law  of  Freedom  and  Bondage,  Vol.  I.  §  343,  note  2. 


64  TERM    SOVEREIGN   AS   APPLIED    TO    THE   STATES. 

mine  how  it  exists  in  the  people  of  the  United  States.  Com 
menting  upon  the  opening  words  of  the  preamble  of  the  Federal 
Constitution,  "  We,  the  people  of  the  United  States,"  he  says : 
"  Who  are  this  people  ?  How  are  they  constituted,  or  what  the 
mode  and  conditions  of  their  political  existence  ?  Are  they  the 
people  of  the  States  severally  ?  No ;  for  they  call  themselves 
the  people  of  the  United  States.  Are  they  a  national  people, 
really  existing  outside  and  independently  of  their  organization 
into  distinct  and  mutually  independent  States?  No;  for  they 
define  themselves  to  be  the  people  of  the  United  States.  If  they 
had  considered  themselves  existing  as  States  only,  they  would 
have  said,  '  We,  the  States  ;  '  and  if  independently  of  State 
organization,  they  would  have  said,  '  We,  the  people,  do  or 
dain,'  &c. 

"  The  key  to  the  mystery,"  he  continues,  "  is  precisely  in  this 
appellation,  United  States,  which  is  not  the  name  of  the  coun 
try,  for  its  distinctive  name  is  America,  but  a  name  expressive 
of  its  political  organization.  In  it  there  are  no  sovereign  people 
without  States,  and  no  States  without  union,  or  that  are  not 
united  States.  The  term  united  is  not  part  of  a  proper  name, 
but  is  simply  an  adjective  qualifying  States,  and  has  its  full  and 
proper  sense.  Hence,  while  the  sovereignty  is  and  must  be  in 
the  States,  it  is  in  the  States  united,  not  in  the  States  severally, 
precisely  as  we  have  found  the  sovereignty  of  the  people  is  in 
the  people  collectively,  or  as  society,  not  in  the  people  individu 
ally.  The  life  is  in  the  body,  not  in  the  members,  though  the 
body  could  not  exist  if  it  had  no  members ;  so  the  sovereignty  is 
in  the  Union,  not  in  the  States  severally ;  but  there  could  be  no 
sovereign  union  without  the  States,  for  there  is  no  union  where 
there  is  nothing  united.1 

^  62.  In  concluding  this  discussion  of  sovereignty  in  the 
United  States,  it  should  be  stated  that,  wherever  in  the  follow 
ing  pages  the  term  sovereign  is  applied  to  the  people  of  a  State, 
as  it  frequently  will  be,  in  speaking  of  the  submission  of  Con 
stitutions,  framed  by  State  Conventions,  to  the  people  of  such 
States,  it  will  be  used  to  signify  the  possession  by  such  people  of 
quasi  sovereign  rights,  in  subordination  to  the  real  sovereign,  the 
American  nation.  Under  the  Constitution  of  the  nation  —  com 
prising  the  federal  and  all  the  State  Constitutions  —  each  State  is 
1  The  American  Republic,  pp.  220,  221. 


TERM    SOVEREIGN    AS    APPLIED    TO    THE   STATES.  65 

permitted  by  the  sovereign  to  frame  for  its  own  people  its  local 
Constitution,  subject  always  to  the  guaranty  of  the  national  gov 
ernment.  In  performing  that  work,  the  people  act  in  the  same 
manner  as  if  they  had  neither  State  nor  federal  relations,  —  as 
though  the  State  were  sovereign  and  independent.  In  truth, 
however,  a  State  is  neither.  In  passing  upon  a  local  Constitu 
tion,  the  people  of  a  State  are  performing  a  delegated  function, 
—  exercising,  by  permission,  and  in  behalf  of  the  people  of  the 
United  States,  a  sovereign  power  belonging  only  to  the  latter. 
That  this  is  the  most  characteristic,  and  by  far  the  most  valu 
able  of  all  the  features  of  the  national  Constitution,  is  undeni 
able,  but  that  fact  does  not  at  all  affect  its  intrinsic  character 
as  above  explained.  With  a  proper  definition  of  "  States 
Rights,"  then,  every  lover  of  his  country  and  every  friend  of  its 
liberties,  must  be  a  "  States  Rights  man  " :  but  that  definition 
must  be  such  as  to  leave  a  country  to  love,  — a  thing  possible 
only  when  the  States  are  regarded  as  expedients  subordinate  to 
the  nation ;  subservient,  in  all  respects,  to  its  interests ;  and, 
therefore,  if  the  nation  so  will,  temporary. 


CHAPTER  III. 

§  63.  THE  function  of  the  Constitutional  Convention  being, 
as  we  have  seen,  to  participate  in  the  framing  or  amending  of 
Constitutions,  before  attempting  to  ascertain  the  extent  of  its 
powers  in  that  regard,  it  is  necessary  to  form  an  accurate  con 
ception  of  what  a  Constitution  is. 

By  the  Constitution  of  a  commonwealth  is  meant,  primarily, 
its  make-up  as  a  political  organism  ;  that  special  adjustment 
of  instrumentalities,  powers,  and  functions,  by  which  its  form 
and  operation  are  determined. 

This  is  a  Constitution,  considered  as  an  objective  fact. 

Beside  this,  the' term  "  Constitution  "  has  a  secondary  mean 
ing,  which  is,  perhaps,  more  common  than  the  one  given, 
involving  equally  the  conception  of  a  system  of  political  in 
strumentalities,  powers,  and  functions,  specially  adjusted  for  the 
purposes  of  government;  but  conceived  of,  not  as  an  objective 
fact,  but  as  a  systematic  written  statement  of  such  a  fact,  in  the 
shape  of  formula  addressed  to  the  understanding.  In  other 
words,  a  Constitution,  in  this  secondary  sense,  is  the  result  of  an 
attempt  to  represent  in  technical  language  some  particular  con 
stitution,  existing  as  an  objective  fact.  This  is  a  Constitution 
considered  as  an  instrument  of  evidence.1 

1  Since  this  part  of  the  text  was  written,  I  have  been  pleased  to  find  that 
substantially  the  same  distinction  here  noted,  between  Constitutions  as  objective 
facts  and  Constitutions  as  instruments  of  evidence,  has  been  taken  in  two  works 
lately  published ;  that  of  Mr.  Hurd,  On  the  Law  of  Freedom  and  Bondage, 
and  that  of  Dr.  Brownson,  The  American  Republic.  The  latter  author 
says : — 

"  The  Constitution  of  the  United  States  is  twofold,  —  written  and  unwritten, 
—  the  constitution  of  the  people,  and  the  constitution  of  the  government.  The 
written  constitution  is  simply  a  law  ordained  by  the  nation  or  people  instituting 
and  organizing  the  government ;  the  unwritten  constitution  is  the  real  or  actual 
constitution  of  the  people  as  a  state  or  sovereign  community,  and  constituting 
them  such  or  such  a  state.  It  is  providential,  not  made  by  the  nation,  but  born 


CONSTITUTIONS   AS   THEY   OUGHT   TO   BE.  67 

§  64.  A  third  variety  of  Constitutions,  so-called,  may  be 
noted,  but  only  to  exclude  them  from  the  list  of  legitimate  Con 
stitutions,  that  is,  Constitutions  "  as  they  ought  to  be"  These 
must  be  carefully  distinguished  from  Constitutions  considered  as 
objective  facts.  They  are  Constitutions  framed  in  the  closet,  ac 
cording  to  abstract  ideas  of  moral  perfection,  for  imaginary  com 
monwealths.  Of  this  class  are  the  instruments  thrown  off  in 
such  numbers  by  the  constitution-mongers  of  France,  during 
her  great  democratic  revolutions,  and  those  hardly  more  unsub 
stantial  ones  framed  by  Plato,  More,  Bacon,  and  Harrington  for 
their  ideal  republics. 

As  contrasted  with  these,  the  Constitution  considered  as  an 
objective  fact,  is  that  Constitution  which  has  actually,  under  the 
operation  of  social  and  political  forces,  evolved  itself  in  a  State. 
This  Constitution  may  differ  much  from  that  inscribed  in  the 
volume  of  the  laws.  Thus,  there  may  have  been  wrought  out 
fundamental  changes  in  the  structure  of  a  government  by  the 
usurpations  of  its  administrative  officers,  and  acquiesced  in  by 
the  sovereign  society ;  in  which  case,  those  changes  would  be 
come  a  part  of  the  Constitution  as  a  fact.  The  usurpations, 
having  this  effect,  might  or  might  not  have  been  intentional. 
The  purchase  of  Louisiana,  admitted  by  Mr.  Jefferson,  who  ef 
fected  it,  to  have  been  an  unconstitutional  act,  may  be  cited  as 
an  instance  of  an  usurpation  resulting  in  important  constitu 
tional  modifications,  which  was  committed  intentionally,  be 
cause  of  its  supposed  great  benefit  to  the  country.  It  is  the 
opinion  of  many  lawyers,  that  State  banks  of  issue  are  uncon 
stitutional.  Admitting  that  they  are  so,  but  that,  when  first 
authorized,  they  were  believed  to  be  within  the  scope  of  Slate 
legislative  power,  and  conceding  that  they  are  now  so  firmly 
established  as  to  be  practically  irrepealable,  they  would  present 
an  illustration  of  an  unintended  usurpation,  ripening  by  long 
acquiescence  into  a  change  of  the  Constitution  as  a  fact.  Simi 
lar  changes  might  arise,  in  the  course  of  the  national  progress, 
from  the  growth  of  opinion,  or  from  some  general  but  gradual 
organic  movement  of  the  society  at  large,  of  importance  so 
fundamental  that  they  must  be  set  down  as  modifications  of  the 

with  it.  The  written  constitution  is  made  and  ordained  by  the  sovereign  power, 
and  presupposes  that  power  as  already  existing  and  constituted." — The  Ameri 
can  Republic,}).  218. 


68         ARE   CONSTITUTIONS   AS   PACTS   FOUNDED   ON    COMPACT? 

Constitution  as  a  fact  The  eradication  of  domestic  slavery 
from  a  nation  whose  fundamental  code  in  its  letter  permitted 
it,  as  a  result  of  civil  war,  would  be  such  a  change. 

§  65.  I  pass  now  to  consider  the  nature  and  specific  varieties 
of  Constitutions  of  the  first  two  kinds,  that  is,  of  Constitutions 
considered,  — 

First,  as  objective  facts  ;  and 

Secondly,  as  instruments  of  evidence  of  those  facts. 

I.  Adverting  to  the  first  of  the  proposed  subjects  of  inquiry, 
what  I  have  to  say  upon  the  nature  of  Constitutions  considered 
as  objective  facts,  will  be  confined  to  this  central  question  :  Are 
Constitutions  founded  upon  compact  ? 

When  it  is  affirmed  that  a  Constitution  is  founded  upon  com 
pact,  what  is  meant  ?  Obviously,  either  that,  at  the  opening 
of  its  historical  development,  it  became  what  it  did  by  virtue  of 
an  actual  agreement  between  the  individuals  then  composing 
the  state,  to  which  agreement  all  subsequently  born  individuals 
became,  from  time  to  time,  parties ;  or,  that  while  there  was 
never,  probably,  an  agreement  between  such  individuals  in  fact, 
their  relations  to  each  other  and  to  the  state,  and  their  conse 
quent  rights  and  duties,  are  what  they  would  be,  had  there  in 
fact  been  such  an  agreement ;  in  other  words,  that  if  there  was 
no  agreement  in  fact,  one  may  be  supposed,  to  account  for  facts 
not  otherwise  so  easily  explained.  That  is,  the  doctrine  of  com 
pact,  as  the  foundation  of  Constitutions,  must  be  asserted  either 
as  a  fact  or  as  an  hypothesis.  Considered  as  a  fact,  it  is  suffi 
cient  to  deny  that  a  Constitution  ever  thus  originated,  in  a  proper 
sense  of  those  terms.  All  Constitutions,  and,  of  course,  all  gov 
ernments,  are  growths,  the  products  of  social  and  political  forces  ; 
among  these  reckoning  as  well  the  traditions,  and  the  physical, 
intellectual,  and  moral  conditions  of  the  society,  as  its  relations 
to  other  political  societies.  It  is  doubtless  true,  that,  whilst  one 
effect  of  these  forces  is,  in  the  domain  of  fact,  to  evolve  the 
actual  Constitution,  another  is,  in  the  domain  of  opinion,  to 
evolve  what  is  called  the  consent  of  the  governed.  The  two 
effects  are,  indeed,  necessary  concomitants,  being  the  different 
results  of  the  same  causes  operating  in  the  diverse  spheres  spe 
cified.  But  to  say  that  the  Constitution  is  based  upon  that  con 
sent  is,  in  my  view,  as  absurd  as  to  attribute  to  the  consent  of 
its  component  particles  the  structure  and  functions  of  a  plant. 


ARE  CONSTITUTIONS  AS  FACTS  FOUNDED  ON  COMPACT  ?    69 

Doubtless  those  particles  acquiesce,  and  if  they  were  sentient 
beings,  with  conscience  and  will,  that  acquiescence,  without 
ceasing  to  be  determined  by  natural  laws  and  forces,  might  be 
denominated  consent.  So  the  acquiescence  of  great  societies  or 
races  in  the  founding  of  governments  and  dynasties  is  only  by 
a  figure  of  speech  to  be  called  their  consent;  it  is  rather  resigna 
tion  to  the  action  of  forces  which  they  have  neither  ability  nor 
desire  to  countervail.  The  human  race  have  always  acquiesced 
in  the  revolution  of  the  earth  about  the  sun  ;  they  have  sat  down 
to  study  its  causes,  and  recognized  with  thankfulness  its  accru 
ing  advantages,  no  faction,  so  far  as  history  shows,  —  the 
church,  perhaps,  in  Galileo's  time  excepted, —  ever  even  pro 
testing  against  it;  but  it  does  not  follow,  therefore,  that  the  sys 
tem  of  planetary  motion,  of  which  that  revolution  is  a  part,  was 
founded  on  the  consent  of  the  earth  or  its  inhabitants,  or  on  a 
compact  between  them  and  the  residue  of  the  universe. 

§  66.  If,  on  the  other  hand,  the  doctrine  that  Constitutions, 
considered  as  facts,  are  founded  upon  compact,  is  put  forth  as 
an  hypothesis  merely,  for  purposes  of  illustration,  and  if  its 
hypothetical  character  is  kept  constantly  in  the  foreground,  it 
may  be  viewed  with  more  indulgence.  The  true  office  of  an 
hypothesis  is  to  provide  a  theory  of  causation  adequate  to  ac 
count  for  known  facts,  and  yet  without  vouching  for  its  absolute 
verity.  It  supposes  the  theory  may  be  true.  It  also  equally  sup 
poses  it  may  be  false,  admitting  readily,  indeed,  that  the  next 
fact  discovered  is  nearly  as  likely  to  prove  it  false  as  true.  But, 
whether  in  fact  false  or  true,  its  usefulness  for  scientific  purposes 
is  the  same.  It  serves  as  a  lay  figure,  on  which  to  exhibit  to 
advantage  in  all  their  relations  truths  that  are  connected  but  ob 
scure.  But  the  danger  is  that  that  which  is  supposed  will  insen 
sibly  lose  its  hypothetical  character  and  come  to  rank  as  a  truth, 
and  so  be  made  the  basis  of  reasoning  to  other  truths  as  unsub 
stantial  as  itself,  but  ignorantly,  on  account  of  the  regularity  of 
their  deduction,  accepted  as  undoubted.  An  instance  of  such  a 
perversion  of  hypothesis  into  political  axiom  is  seen  in  the  his 
tory  of  the  dictum  of  the  Roman  jurisconsults,  based  on  the 
fiction  of  a  "  Law  of  Nature,"  namely,  that  "  all  men  are  by 
nature  equal ; " 1  which,  revived  by  the  French  lawyers  and  by 

l  "  Omnes  homines  naturd  cequales  sunt"  the  maxim  of  the  Roman  lawyers  of 
the  Antonine  era.  — Maine,  Ancient  Laiv,  p.  89. 


70    ARE  CONSTITUTIONS  AS  FACTS  FOUNDED  ON  COMPACT? 

Rousseau,  passed  from  them,  through  Jefferson,  into  the  Ameri 
can  Declaration  of  Independence.  Mr.  Maine,  in  his  late  pro 
found  work  on  "  Ancient  Law,"  has  demonstrated,  that  in  its 
inception,  this  doctrine  was  propounded  merely  to  express  the 
relations  of  the  various  peoples  of  Rome  to  one  another,  under 
an  hypothetical  law  of  nature.  According  to  that  supposed  law, 
he  says,  "  there  was  no  difference  in  the  contemplation  of  the 
Roman  tribunals  between  citizen  and  foreigner,  between  free 
man  and  slave,  agnate  and  cognate."  In  those  tribunals,  then, 
the  maxim  as  to  the  equality  of  all  men  meant,  that  in  the  eye 
of  an  imaginary  law,  derived  from  a  supposed  "state  of  nature" 
all  the  inhabitants  of  Rome  were  equal.  But,  when  taken  up 
by  the  writers  of  later  times,  the  doctrine  that  all  men  are  by 
nature  equal  was  used  in  a  different  sense,  no  longer  bearing  on 
merely  civil,  but  also  on  political  relations,  namely,  to  signify 
that  "all  men  ought  to  be  equal."  x  Thus,  what  was  originally  a 
particular  statement  relative  merely  to  an  hypothetical  code  of 
civil  law  for  the  "  Latin  name,"  has  come  to  be  propounded  as  a 
political  axiom  of  general  application.2 

§  67.  Conceding,  then,  that  the  doctrine  of  compact  we  are 
considering  was  propounded  by  its  authors  as  an  hypothesis 
merely,  the  danger  was  that  men  should  come  to  look  upon  it  as 
the  expression  of  a  fact,  and  thereupon  spin  from  it  conclusions 
that  would  be  disastrous  to  society.  Precisely  such  has  been 
the  fortune  of  this  famous  doctrine  during  the  last  hundred 
years.  It  has  been  received  as  a  political  axiom  of  general  ap 
plication  and  of  absolute  truthfulness.  The  fact,  however,  is, 
that  it  is  a  fallacy,  or,  at  least,  a  fancy,  which  is  dignified  beyond 
its  deserts  when  it  is  ranked  as  an  hypothesis.  History  records 
no  instance  in  which  such  a  compact  as  the  theory  supposes  was 
ever  made ;  and  to  imagine  it,  except  for  the  purpose  of  exposi 
tion  or  illustration,  is  as  puerile  as  to  trace  the  social  union  of  a 
swarm  of  bees  to  a  compact  made  at  some  imaginary  congress, 
when  each  bee  was  in  a  "  state  of  nature."  The  state  of  nature 
for  the  bee  is  that  of  union  in  the  swarm  ;  and  so  the  state  of 
nature  for  mankind  is  that  of  association  in  political  communi 
ties,  patriarchal  or  other.  The  rights  and  obligations  growing 
out  of  the  social  state  are  as  old  as  the  absolute  rights  of  indi- 

1  Maine,  Ancient  Law,  pp.  70-92. 

2  Ibid. 


ARE   WRITTEN    CONSTITUTIONS   FOUNDED   ON   COMPACT?          71 

viduals.  They  are  not  the  results  of  compact,  but  are  parts  of 
the  system  of  human  society,  devised  by  the  Creator  "  in  the 
beginning." 

§  68.  It  may  be  well  in  this  place  to  complete  our  view  of  the 
theory  of  compact,  as  the  basis  of  Constitutions,  by  consider 
ing  its  application  to  the  second  class  of  Constitutions  noted, 
namely,  Constitutions  considered  as  instruments  of  evidence. 
Of  these,  compacts,  in  a  proper  sense  of  the  term,  often  form 
parts.  To  explain  my  meaning,  it  is  necessary  to  consider  how 
Constitutions  of  that  kind  arise.  It  will  be  seen  in  subsequent 
sections  that  some  are  merely  collections  of  customs,  stat 
utes,  and  judicial  decisions,  published  by  unofficial  persons, 
that  is,  persons  without  authority  to  pronounce  definitively  upon 
their  letter  or  import ;  whilst  others  are  simply  statutes  enacted 
by  sovereign  authority.  Of  the  former  kind,  the  English  Con 
stitution  is  an  example,  and  of  the  latter,  that  of  the  United 
States.  Now,  when  a  people  frame  a  Constitution  in  the  sec 
ond  sense,  or  make  a  law  or  a  treaty,  which  becomes  a  part  of 
such  a  Constitution,  what  is  the  nature  of  their  act  ?  It  is  a 
translating  into  appropriate  legal  language,  and  a  formal  regis 
tering  amongst  the  archives  of  the  nation,  stamped  with  the  fiat 
which  marks  the  national  acquiescence  and  gives  to  it  authen 
ticity,  of  the  Constitution,  or  part  of  a  Constitution,  which  has,  in 
the  progress  of  the  nation  and  under  the  operation  of  all  its 
social  forces,  actually  evolved  itself  as  a  fact. 

Such  a  work  evidently  requires  the  highest  powers,  and  is  not 
likely  to  be  executed  with  unanimity.  Where  the  details  of  the 
Constitution  as  a  fact  are  so  apparent  that  the  people  are  of  one 
mind  as  to  the  legal  formulae  requisite  to  embody  them,  there 
would  be  no  compact ;  for,  to  produce  that,  there  must  be  diver 
gence  of  opinions,  resulting  finally  in  agreement.  Where,  how 
ever,  a  divergence  had  arisen,  but  had  finally  ended  in  a  com 
promise,  involving,  not  a  conviction  in  the  minds  of  one  party 
that  the  views  of  its  opponents  were  correct,  but  a  surrender 
of  its  own,  that  results  might  be  achieved,  there  would  be  a 
compact.  Thus,  to  illustrate,  there  arose  in  the  Federal  Conven 
tion  two  parties  on  this  question  :  Given  the  absolute  necessity  of 
a  closer  union  of  the  States,  for  their  prosperity  and  safety,  and 
the  necessity,  on  the  other  hand,  equally  absolute,  for  the  con 
servation  of  our  liberties,  that  the  States  should  be  retained  as 


72          ABE    WRITTEN   CONSTITUTIONS   FOUNDED   ON    COMPACT? 

political  organizations,  what  is  the  representation  in  the  national 
Congress  that  is  alone  consistent  with  the  attainment  of  both 
those  objects  ?  One  party  said,  it  must  be  that  of  representa 
tion  proportioned  to  population.  This  party  was  composed  of 
the  large  States.  The  other  party,  made  up  of  the  small  States, 
replied  :  "  No  ;  such  a  rule  would  place  our  fate  in  your  hands  ; 
you  would  combine  and  wipe  out  State  lines,  and  thus  bring 
shipwreck  upon  our  liberties.  The  Constitution  of  the  United 
States,  as  a  fact,  as  it  has  evolved  itself  under  the  operation 
of  existing  forces,  and  for  which  we  are  seeking  an  adequate 
expression,  involves  State  equality,  because,  without  it  the  sys 
tem  cannot  stand.  The  representation  must  be  set  down  by  us 
as  equal  from  all  the  States,  great  and  small."  This  divergence 
of  opinion  was  radical,  and,  as  is  well  known,  came  near  frus 
trating  the  efforts  at  a  closer  union.  Happily,  however,  a  com 
promise  was  effected.  A  middle  course  was  found,  which  fully 
satisfied  neither,  namely,  to  declare  that  the  representation  sought 
for  —  the  unknown  quantity  in  the  problem  —  was,  in  the  House, 
a  representation  proportioned  to  population,  in  the  Senate,  equal. 
This  was  a  compact.  But  it  is  important  to  note,  that  it  was  a 
compact,  to  use  a  common  phrase,  but  "  skin  deep."  It  was  a 
compact  which  settled,  not  that  the  Constitution,  as  a  fact,  was 
as  laid  down  in  the  instrument  then  framed,  but  that  it  should 
for  the  nonce  be  so  declared  and  considered  ;  each  party  retain 
ing  still  its  opinion  as  to  the  fact,  and  the  right,  in  the  way 
pointed  out  in  the  instrument  itself,  to  cause  that  opinion  ulti 
mately  to  prevail.  Whether  the  formula  agreed  upon  did  in 
truth  embody  the  then  existing  Constitution  as  an  objective  fact, 
is  a  wholly  different  question,  which  I  do  not  decide.1 

§  69.  It  is  evident  that,  if  the  views  presented  in  the  foregoing 
sections  be  sound,  a  very  important  question  may  arise,  namely : 
admitting  the  possibility  of  discrepancies  between  the  Constitu 
tion  of  a  state,  as  a  fact,  and  its  constitution  as  an  instrument 
of  evidence,  which  has  the  superior  validity  ?  In  answering  this 
question,  it  would  be  easy  —  and  to  some  minds  the  tempta 
tion  would  be  strong  —  to  propound  doctrines  subversive  of  all 
regulated  liberty.  The  reply  seems  reasonable,  that  the  Consti 
tution,  as  an  objective  fact,  the  Constitution,  as  it  ought  to  be 
written  out,  to  harmonize  with  the  results  of  existing  social 
l  See  Commonwealth  v.  Aves,  18  Pick.  R.  193,  per  Shaw,  Ch.  J. 


ABE   WRITTEN    CONSTITUTIONS   FOUNDED   ON   COMPACT?          73 

forces,  ought  to  prevail,  rather  than  any  empirical  transcript  of 
it  made  by  fallible  men,  and  therefore  inadequate  at  the  start, 
or  become  so  by  the  progress  of  society.  But  such  a  doctrine 
would  be  anarchical  —  one  according  to  which  no  government 
of  laws  could  long  exist.  The  Constitution  as  it  has  been  sol 
emnly  declared  to  be,  with  as  well  its  compacts  as  its  bare  tran 
scriptions,  must  be  the  sole  guide,  as  to  all  matters  and  persons 
within  its  proper  cognizance. 

But,  at  this  point,  a  distinction  should  be  made.  The  people 
of  a  commonwealth  sustain  to  its  Constitution  a  double  relation, 
—  first,  that  of  its  enactors ;  and,  secondly,  that  of  citizens 
amenable  to  its  provisions.  In  the  first  relation,  they  make  up 
the  political  society  of  which  it  is  the  Constitution.  In  the  sec 
ond,  they  are  simply  individuals,  being  either  private  citizens  or 
persons  charged  for  the  time  being  with  public  functions  under 
the  Constitution  ;  in  both  of  which  predicaments  they  are  abso 
lutely  subject  to  every  provision  of  the  Constitution,  to  which, 
while  it  exists,  there  is  for  them  nothing  in  the  shape  of  law 
superior.  But,  for  the  people  considered  in  the  first  relation,  as 
the  enactors  of  Constitutions,  provisions  of  the  written  Constitu 
tion  not  according  with  the  Constitution  as  a  fact,  are  in  general 
of  no  binding  force  whatever :  not  only  may  the  people,  but,  if 
they  would  insure  peace  with  progress,  they  must  by  amend 
ments  cause  the  former  to  conform  substantially  to  the  latter. 
I  say  "  in  general,"  because  two  cases  may  be  exceptions  :  first, 
that  of  compacts,  of  which  the  occasions  —  divergence  of  views 
or  of  interests,  resulting  in  compromise  —  still  subsist  in  sub 
stance  unchanged  ;  and,  secondly,  that  of  constitutional  inter 
dicts,  couched  in  negative  terms,  and  having  practically  the 
same  effect  as  compacts.  In  both  these  cases  the  constitutional 
provisions  referred  to  operate,  through  their  effect  on  the  subor 
dinate  agents,  by  whom  alone  the  sovereign  can  act,  as  a  limi 
tation  upon  the  sovereign  itself;  it  cannot,  without  a  violation 
of  morals  or  of  the  fundamental  law,  or  of  both,  disregard  what 
it  has,  under  such  circumstances  or  in  such  terms,  ordained  and 
established. 

§  70.  II.  Constitutions  considered  as  facts,  may  be  discrimi 
nated,  with  reference  to  the  participation  of  the  citizens  in  the 
exercise  of  the  powers  granted  by  them,  into  several  species. 

1.  Of  these,  the  first  comprises  those  Constitutions  in  which  a 


74  VARIETIES   OF   CONSTITUTIONS   AS   FACTS. 

single  citizen  monopolizes  the  entire  powers  of  the  government. 
These  are  the  Constitutions  of  what  are  called  absolute  mon 
archies,  or  autocracies,  and  the  peculiar  arrangement  of  powers 
by  which  they  are  characterized  is  the  result  of  usurpation  on 
the  part  of  the  servants  of  the  true  sovereign,  the  state,  followed 
by  the  acquiescence  of  the  latter. 

2.  The  next  species  embraces  Constitutions  in  which  a  few 
citizens,  instead  of  one,  monopolize  all  the  powers  of  govern 
ment.     These   are   styled   aristocracies,  and    the   same   remark 
respecting  their  origin  is  applicable,  just  made  with  reference  to 
that  of  monarchies.     The  term  "  few,"  as  denoting  the  number 
who  participate  in  the  functions  of  government,  is,  of  course, 
indefinite,  but  it  is  intended  to  designate  by  that  term  a  very 
small  minority  of  the  citizens  forming  generally  a  close  corpo 
ration,  to  which  admission  is  practically  denied. 

3.  The  third  species  is  made  up  of  Constitutions  which  recog 
nize  a  single  monarch,  theoretically  the  fountain  of  honor  and 
authority,  but  in  which  considerable  numbers  of   the  citizens, 
or  certain  favored  classes  of  them,  participate  in  the  government 
by  representation.     Governments  controlled  by  such  Constitu 
tions  are  called  limited  monarchies,  a  good  example  of  which 
is  that  of  England. 

4.  The  fourth  species  comprises  Constitutions,  in  which,  while 
there  is  no  monarch,  and  the  people  are  recognized  as  the  foun 
tain  of  all  law  and  authority,  a  large  proportion  of  the  citizens, 
determined  by  the  sovereign  body,  exercise  the  powers  of  gov 
ernment  by  representation.     Of  this  species  are  the   Constitu 
tion  of  the  United  States,  and  those  of  the  several  States  of  the 
Union. 

5.  The  last  species  I  shall  mention  consists  of  Constitutions 
in  which  all  the  citizens  participate,  or  may  participate,  in  the 
government  directly,  without  representation  —  as  the  Constitu 
tions  of  some  of  the  Swiss  Cantons.    This  kind  of  Constitutions 
is  obviously  practicable  only  in  states  of  small  territorial  extent. 

§  71.  Constitutions,  considered  in  their  evidentiary  character, 
that  is,  as  evidence  of  what  some  particular  Constitutions  are 
as  objective  facts,  may  be  discriminated,  first,  with  reference  to 
the  mode  in  which  they  originate,  into  two  classes,  namely  :  — 

1.  Cumulative  Constitutions. 

2.  Enacted  Constitutions. 


CUMULATIVE   AND   ENACTED    CONSTITUTIONS.  75 

Secondly,  with  reference  to  their  general  characteristics  as 
sources  of  evidence,  into  two  others,  closely  allied  to  the  former, 
namely  :  — 

3.  Unwritten  Constitutions. 

4.  Written  Constitutions. 

§  72.  1.  By  a  cumulative  Constitution,  is  meant  one  made  up 
gradually  of  accumulated  usages  and  common-law  principles, 
decisions  of  the  courts,  spontaneous  and  enacted  institutions, 
compacts  and  statutes,  of  fundamental  importance  or  embody 
ing  principles  of  political  magnitude.1  The  leading  idea  in  this 
variety  is,  that  they  are  evolved  gradually,  as  the  exigencies  of 
the  national  life  require.  Whenever  a  weak  spot  in  the  political 
fabric  is  discovered,  the  law  or  institution  extemporised  to  sup 
ply  the  defect  becomes  a  part  of  the  Constitution.  Two  things, 
consequently,  are  essential  to  their  successful  operation  :  first, 
an  alert  and  well-instructed  public  opinion,  prepared  at  a  mo 
ment's  warning,  to  provide  the  constitutional  device  necessary 
to  the  exigency  ;  and,  secondly,  public  servants  trained  to  a 
thorough  knowledge  of  the  institutions  intrusted  to  their  man 
agement,  to  a  love  and  reverence  for  them,  and  with  a  dispo 
sition  to  obey  with  equal  alacrity  its  new  and  its  old  provisions. 
Of  this  peculiar  kind  of  Constitutions,  those  of  ancient  Rome 
and  of  England  are  conspicuous  examples. 

§  73.  2.  Enacted  Constitutions,  as  the  name  implies,  are  such 
as  are  positive  enactments,  made  commonly  at  one  time, 
though  sometimes  at  different  times,  by  the  appropriate  leg 
islative  authority.  From  Constitutions  of  this  kind,  customs, 
compacts,  decisions  of  courts  and  ordinary  statutes,  except  to 
aid  in  construing  doubtful  clauses,  are  excluded.  The  Con 
stitutions  established  in  the  United  States,  and  such  as  have 
been  modelled  after  them  abroad,  are  examples  of  enacted  Con 
stitutions. 

§  74.  3  and  4.  The  two  remaining  varieties  of  Constitutions, 
the  written  and  unwritten,  embrace  respectively  the  same  Con 
stitutions  as  the  two  above  described,  but  viewed  in  a  different 
relation.  In  those  they  were  considered  with  reference  to  their 
origin  or  mode  of  development ;  in  these  they  will  be  con 
sidered  with  reference  to  their  characteristic  qualities  as  sources 
or  instruments  of  evidence.  When  a  Constitution  is  spoken  of 
i  Adapted  from  Dr.  Lieber,  Civil  Liberty,  p.  166,  note  1. 


76  WRITTEN   AND    UNWRITTEN    CONSTITUTIONS. 

as  written  or  unwritten,  those  words  are  used  in  a  sense  analo 
gous  to  that  in  which  the  terms  lex  scripta,  and  lex  non  scripta 
are  employed  in  treatises  on  municipal  law,  referring,  not  to 
the  present,  but  to  the  original  character  of  the  laws  in  question, 
as  written  or  unwritten.  It  is  well  known  that  the  common 
law,  which  is  strictly  lex  non  scripta,  is  embodied  in  writing  as 
fully  as  the  statute  law,  which  is  properly  styled  lex  scripta  ; 
but  in  its  inceptive  stages  the  case  was  different.  Precisely 
the  same  distinction  exists  between  written  and  unwritten 
Constitutions.  But  the  principal  analogy  between  the  two  great 
classes  of  laws  thus  characterized,  the  constitutional  and  the 
municipal,  is  in  the  rules  of  construction  and  the  evidentiary 
effect  of  the  written  or  scripta,  on  the  one  hand,  and  the  un 
written  or  non  scripta,  on  the  other.  In  illustrating  this  analogy, 
I  shall  confine  my  observations  to  the  construction  and  effect,  as 
evidence,  of  Constitutions.  An  unwritten  Constitution  is  made 
up  largely  of  customs  and  judicial  decisions,  the  former  more  or 
Jess  evanescent  and  intangible,  since  in  a  written  form  they 
exist  only  in  the  unofficial  collections  or  commentaries  of  pub 
licists  and  lawyers ;  and  the  latter  composing  a  vast  body  of 
isolated  cases,  having  no  connecting  bond  but  the  slender  thread 
of  principle  running  through  them,  a  thread  often  broken,  some 
times  recurrent,  and  never  to  be  estimated  as  a  whole  but  by 
tracing  it  through  its  entire  course  in  the  thousand  volumes  of 
law  reports.  The  result  is,  that  what  the  custom  or  what  the 
course  of  judicial  decisions  may  be  upon  any  point  of  funda 
mental  law,  is  a  most  complicated  question,  the  answer  to  which 
can  at  best  be  but  an  inference  from  many  disconnected  facts. 

§  75.  Not  so  with  written  Constitutions.  As  I  have  said, 
customs,  decisions  of  courts,  and  institutions  growing  up  spon 
taneously,  have  no  place  in  them.  Such  Constitutions  are  stat 
utes  merely,  covering  the  W7hole  ground  and,  so  far  as  the 
purpose  of  their  framers  is  answered,  precluding  the  possibility 
of  construction.  It  is  only  when  human  skill  in  the  expression 
of  ideas  is  baffled,  that  a  case  can  arise  in  which  a  court  must 
pronounce  what  the  Constitution  is.  The  field  thus  provided  for 
construction,  though  infinitely  narrower  than  in  unwritten  Con 
stitutions,  is  still  ample,  for  a  Constitution  can  only  deal  in  gen 
eralities,  whereas  its  application  to  particular  cases  is  precisely 
that  which  must  daily  be  determined.  The  crowning  difference 


WRITTEN    AND    UNWRITTEN    CONSTITUTIONS.  77 

between  the  two  species  of  Constitutions  lies  in  this  :  that  the 
duty  of  those  who  construe  a  written  Constitution  is  merely, 
first,  to  ascertain  the  meaning  of  the  general  clause  of  it  cover 
ing  the  case ;  and,  secondly,  to  determine  its  application  to  the 
particular  facts  in  question  ;  the  duty,  on  the  other  hand,  of 
those  who  construe  an  unwritten  Constitution  is,  first,  to  enter 
upon  an  exhaustive  search  after  the  repositories  or  memorials  in 
which  the  Constitution  lies  enshrined ;  secondly,  having  gotten 
together  these,  to  interpret  them,  and  finally  to  settle  by  con 
struction,  if  necessary,  the  application  of  their  general  pro 
visions  to  the  particular  facts  of  the  case.  In  other  words,  the 
scope  of  construction  in  a  written  Constitution  is  principally  to 
ascertain  what  particular  clauses  of  a  determinate  instrument 
mean  ;  whilst  in  an  unwritten  Constitution  this  inquiry  must  be 
prefaced  by  another  still  more  difficult,  as  to  the  contents  or 
tenor  of  the  Constitution  to  be  construed.  In  the  former  case, 
construction  is  confined — that  is,  it  operates  only  upon  the 
Constitution  itself  considered  as  an  instrument  which  is  al 
ready  determined ;  in  the  latter,  it  is  at  large ;  it  first  inquires 
what  the  terms  of  the  law  are  and  then  proceeds  to  determine 
their  meaning  and  application. 

§  76.  It  is  obvious,  that  out  of  the  distinction  just  announced 
must  grow  important  consequences.  One  of  these  is  that  un 
written  Constitutions  are  the  playthings  of  judicial  tribunals. 
They  are  flexible,  because  in  the  vast  store-house  of  heteroge 
neous  matter,  out  of  which  their  provisions  are  to  be  gathered, 
it  is  easy  to  find  or  not  to  find,  that  which  one  will.  A  prej 
udice  or  a  prepossession  may  readily  give  shape  to  the  results 
of  the  most  honest  researches.  So,  the  pressure  of  opinion,  or  of 
some  great  public  necessity,  may  warp  the  judgment  and  lead 
the  judicial  mind  to  see  what  it  is  desirable  should  be  seen. 
The  same  may  doubtless  happen  to  some  extent  in  case  of 
a  written  Constitution.  Doubtful  clauses  are  fields  in  which 
passion  or  prejudice  have  play,  but  that  is  an  evil  inseparable 
from  the  nature  of  mankind.  It  is  probable  that  written 
Constitutions  reduce  the  power  of  judicial  legislation  by  con 
struction  to  its  minimum.  Here  is  the  text ;  what  does  it  mean, 
taking  its  language,  not  in  a  strained  sense,  or  diverso  intuitu^ 
but  in  its  ordinary  signification  at  the  time  the  instrument  was 
indited  ?  What  is  the  precise  meaning  intended  by  its  authors  ? 


78  ADVANTAGES   OF   WRITTEN   CONSTITUTIONS. 

If  judicial  legislation  is  an  evil,  written  Constitutions  are  clearly 
barriers  in  the  way  of  its  progress.  How  far  they  are  advan 
tageous  on  the  whole  is  yet  an  unsettled  question.  A  short 
statement  of  the  comparative  advantages  and  disadvantages  of 
written  and  unwritten  Constitutions,  may  be  useful  before  leav 
ing  this  branch  of  the  subject. 

§  77.  The  advantages  of  written  Constitutions  are  chiefly  the 
following :  — 

1.  "  When  the  political  life  of  a  people  has  been  unpropitious 
for  the  foundation  and  growth  of  civil  institutions,  they  are 
frequently  the  only  possible  starting  point,  and  however  slow, 
superficial,  or  deficient  their  action  may  be  for  a  long  time,  still 
they  form  often  the  first  available  means  to  give  civic  dignity 
and  political  consciousness  to  a  people,  as  well  as  the  beginning 
of  distinct  delineation  of  power."  1  2.  They  "  form,  in  times 
of  political  apathy,  if  not  too  great,  a  passage,  a  bridge  to  pass 
over  to  better  times."  2  Had  the  United  States  had  an  unwrit 
ten  Constitution  during  the  last  thirty  years,  would  the  battle 
with  slavery  have  been  fought  with  such  persistency  and  success 
as  we  have  witnessed,  amid  the  general  and  increasing  political 
ignorance  and  moral  depravation  of  our  people  ?  3.  "  It  gives  a 
strong  feeling  of  right,  and  a  powerful  impulse  of  action,  to  have 
the  written  law  clearly  on  one's  side,  and  though  power,  if  it 
comes  to  the  last,  will  disregard  the  written  law  as  well  as  the 
customary,  yet  it  must  come  to  the  last  before  it  dares  to  pass 
the  Rubicon,  and  to  declare  revolution."  3  4.  A  written  Consti 
tution  has  the  peculiar  advantage  of  serving  as  a  beacon  to  ap 
prise  the  people  when  their  rights  and  liberties  are  invaded  or  in 
danger.4  5.  Though  written  Constitutions  may  be  violated  in 
moments  of  passion  or  delusion,  yet  they  furnish  a  text  to 
which  those  who  are  watchful  may  again  rally  and  recall  the 
people ;  they  fix  too  for  the  people  the  principles  of  their  political 
creed."  5 

§  78.  Against  these  advantages  must  be  set  down  certain 
drawbacks. 

1  Lieber,  Polit.  Ethics,  Pt.  I.  p.  394. 

2  Id.  p.  395. 

3  Ibid. 

4  Tucker's  Black.  Com.,  Appendix  to  Vol.  I.  p.  20. 

5  Jefferson,  in  a  letter  to  Dr.  Priestley,  Works,  Vol.  IV.  p.  441. 


ADVANTAGES   OP  UNWRITTEN   CONSTITUTIONS.  79 

1.  Written  Constitutions  are  liable,  if  not  frequently  amended, 
to  become  inadequate,  —  an  evil  inseparable  from  all  attempts 
to  define  the  powers  of  that  which  is  in  a  state  of  transition  or 
growth.  2.  If  facility  exist  for  producing  amendments,  there  is 
danger  that  constitutional  changes  may  be  made  the  objects  of 
party  warfare  for  party  purposes.  Changes  might  thus  be  forced 
into  the  written  instrument  before  they  had  wrought  themselves 
out  in  the  Constitution  as  a  fact.  3.  Written  Constitutions, 
whatever  may  be  the  facilities  afforded  for  amending  them,  are 
too  inflexible.  In  a  nation  of  the  magnitude  of  ours,  the  process 
of  changing  its  Constitution  is,  at  best,  slow.  In  the  mean  time, 
its  rulers  may  be  tempted,  under  the  influence  of  great  national 
interests,  or  under  the  pressure  of  threatening  calamities,  to  vio 
late  it;  the  danger  of  doing  which  is  much  greater  where  its 
provisions  are  generally  understood,  than  under  an  unwritten 
Constitution,  most  of  whose  provisions  are  doubtful  or  unfa 
miliar.1 

§  79.  The  advantages  of  unwritten  Constitutions  may  be  em 
braced  in  a  single  proposition  :  they  are  likely  at  all  times  to  be 
more  correct  expressions  than  any  others  of  the  corresponding 
Constitutions,  considered  as  objective  facts.  This  follows  from 
the  process  of  their  development.  An  unwritten  Constitution  is 
a  record,  by  more  or  less  competent  observers,  of  fundamental 
changes  which  have  occurred  in  the  structure,  principles,  or 
guaranties  of  the  Constitution  considered  as  a  fact.  These 
changes  are  not  made,  but  work  themselves  out  under  the  opera 
tion  of  determinate  social  and  political  forces.  They  do  not 
evolve  themselves  per  saltum,  as  in  written  Constitutions,  but 
gradually  and  continuously.  They  who  transcribe  such  a  Con 
stitution,  merely  watch,  pen  in  hand,  the  play  of  the  producing 
forces  and  note  results  as  they  are  achieved.  These  results  be 
come  parts  of  the  Constitution  as  a  fact,  and  the  delineation  of 

1  De  Maistre  thus  suras  up  his  opinion  of  written  Constitutions :  He  main 
tains,  "  1.  That  the  foundations  of  political  Constitutions  exist  in  advance  of  all 
written  law.  2.  That  a  Constitution  is  and  can  be  but  the  development  of  a  pre 
existing  unwritten  law.  3.  That  that  part  of  a  Constitution  which  is  most  essen 
tial,  most  intrinsically  constitutional,  in  short,  which  is  truly  fundamental,  never 
is,  and  without  imperiling  the  whole  political  system,  never  can  be,  reduced  to 
writing.  4.  That  the  weakness  of  a  Constitution,  and  consequently  its  liability 
to  infraction,  are  directly  proportioned  to  the  multiplicity  of  its  written  articles." 
—  Works,  Tom.  I.  p.  12. 


80  MERITS    OF   THE   TWO    CONTRASTED. 

them,  made  by  the  observer,  a  part  of  the  unwritten  Constitution 
considered  as  an  instrument  of  evidence. 

§  80.  It  is  obvious  that  if  Constitutions,  considered  as  facts, 
couid  develop  into  institutions  as  conspicuously  and  as  perfectly 
as  does  the  tree  into  fruit,  the  unwritten  would  be  by  far  the 
most  perfect  of  Constitutions,  since  then  the  text  of  it  would  im 
mediately  reflect  actual  fundamental  changes.  This,  however, 
is  not  the  fact.  Excepting  occasionally  when  a  change  is 
wrought  out  by  a  charter  or  by  a  statute,  whose  terms  of  course 
would  be  certain,  unwritten  Constitutions  are  determined  by  the 
growth  of  customs  or  of  institutions,  emerging  often  so  imper 
ceptibly  as  to  elude  common  observation.  And  wherever  there 
is  obscurity  or  doubt,  there  are  the  conditions  of  conflict. 
Hence,  though  it  is  probable  fundamental  changes  will  be 
sooner  registered  in  an  unwritten  Constitution,  they  are  no  more 
likely  to  have  developed  themselves  peacefully  than  when  they 
occur  under  a  written  Constitution.  The  truth  is,  that  conflict 
is  the  condition  of  such  changes  everywhere.  It  is,  however, 
less  likely  to  be  prolonged  when,  as  soon  as  it  is  ended  and  the 
victory  announced,  the  battle-cry  of  the  victorious  party  is  in 
scribed  in  the  Constitution,  as  a  part  thereof,  than  when  it  must 
still  be  embodied  in  it  by  a  formal  vote  of  the  electors. 

§  81.  Considering  the  excellencies  and  defects  of  the  two  vari 
eties  of  Constitutions,  it  is  not  easy  to  strike  a  balance  between 
them.  For  a  community  whose  political  training  has  been  car 
ried  to  a  high  degree  of  perfection,  in  my  view,  an  unwritten 
Constitution  would,  on  the  whole,  be  preferable.  In  that  train 
ing  two  elements  would  be  of  vital  consequence  to  the  safety  of 
the  system  :  1.  An  accurate  understanding  of  their  political  rights 
and  duties,  general  among  the  citizens.  2.  Sleepless  vigilance  to 
detect  violations  of  the  Constitution,  and  the  utmost  promptness 
and  energy  to  resist  and  punish  them.  Without  either  of  these 
elements,  the  usurpations  of  public  functionaries  must  bring  the 
system  to  speedy  ruin.  But  for  a  community  whose  training  has 
been  imperfect,  or  which  is  subject  to  fits  of  political  apathy 
alternating  with  those  of  intense  zeal  for  reform,  a  written  Con 
stitution  is  doubtless  the  better  one.  While  less  flexible  to  the 
pressure  of  the  national  will,  and  therefore  liable,  in  many  of  its 
provisions  to  become  obsolete  and  oppressive,  it  is  a  formidable 
barrier  against  usurpation.  Its  provisions  are  so  plain  that  he 


AMENDMENT   OF   CONSTITUTIONS.  81 

who  transgresses  them  must  generally  do  so  intentionally,  and 
that  fact  must  be  so  apparent  that  usurpation  would  in  most 
cases  not  be  ventured  upon,  as  likely  to  rouse  a  dangerous  oppo 
sition.  The  superiority  of  such  a  Constitution  in  the  circum 
stances  supposed,  follows  from  the  fact  that  immobility,  with  its 
train  of  possible  evils,  is  less  dangerous  than  movement  that  is 
ill-judged  or  unconstitutional. 

§  82.  To  render  a  written  Constitution  safe,  however,  under 
the  most  favorable  conditions,  it  must  embrace  efficient  ma 
chinery  for  its  own  amendment,  and  that  machinery  must  be  so 
devised  as  neither  to  operate  with  too  great  facility,  nor  to  re 
quire  to  set  it  in  motion  an  accumulation  of  force  sufficient  to 
explode  the  system.  Two  tendencies  are  observable  in  reference 
to  the  way  in  which  a  Constitution  is  regarded  by  the  citizens 
of  a  state,  both  equally  reprehensible :  the  tendency  to  idolize 
the  letter  of  it,  or,  on  the  contrary,  to  under-estimate  its  real  sa- 
credness,  and  so  to  degrade  it  to  the  level  of  ordinary  laws.  The 
latter  leads  to  undue  tampering  with  constitutional  provisions 
for  purposes  of  selfish  or  partisan  ambition.  The  former  begets 
that  foolish  kind  of  conservatism  which  clings  to  its  worn-out 
garments  until  the  body  is  ready  to  perish  with  cold.  Mr.  Jeffer 
son  insisted  that  no  Constitution  ought  to  go  longer  than  twenty 
years  without  an  opportunity  being  given  to  the  citizens  to 
amend  it.  This  opinion  he  based  upon  the  consideration  that, 
by  the  European  tables  of  mortality,  it  appeared  that  a  genera 
tion  of  men  lasted,  on  an  average,  about  that  number  of  years, 
and  that  every  succeeding  generation,  like  its  predecessor,  had 
"  a  right  to  choose  for  itself  the  form  of  government  it  believed 
most  promotive  of  its  own  happiness  ;  consequently,  to  accom 
modate  to  the  circumstances  in  which  it  finds  itself,  that  received 
from  its  predecessors."  l  If  to  this  there  be  appended  the  pro 
visos,  that  amendments  shall  only  then  be  attempted  if  they  are 
pronounced  necessary  by  the  representatives  of  the  people,  and 
that  they  may  be  made  at  any  time  when  so  pronounced  by  a  vote 
cast  under  circumstances  making  it  probable  that  it  reflects  the 
settled  will  of  the  people,  the  opinion  is  doubtless  a  sound  ones, 

§  83.  But  it  is  not  enough  that  a  Constitution  provide  a 
mode  for  effecting  its  own  amendment;  it  is  necessary  that 

i  Letter  to  Samuel  Kercheval,  of  July  12, 1816.  Jefferson's  Works,  Vol.  VTL 
pp.  9-17. 

6 


82  AMERICAN   CONSTITUTIONS   GENERALLY   WRITTEN. 

there  should  be  developed  a  political  conscience  impelling  to 
make  amendments  in  the  written  Constitution  when  such  as 
are  really  important  have  evolved  themselves  in  the  Consti 
tution  as  a  fact.  Our  courts  can,  in  general,  recognize  no  law 
as  fundamental  which  has  not  been  transcribed  into  the  book  of 
the  Constitution.  When  great  historical  movements,  like  those 
which  have  lately  convulsed  the  United  States,  have  resulted  in 
important  political  changes,  that  are  so  consummated  and  set 
tled  as  to  indicate  a  solid  foundation  in  the  actual  Constitution, 
they  should  be  immediately  registered  by  the  proper  authority 
among  the  fundamental  laws.  Why  embarrass  the  courts  and 
fly  in  the  face  of  destiny  by  refusing  to  recognize  accomplished 
facts  ?  A  point  of  honor  should  in  such  cases  be  cultivated, 
compelling  the  citizen  to  acquiesce  in  the  decrees  of  the  Al 
mighty  as  written  in  events,  similar  to  that  which  forces  an 
English  minister,  on  an  adverse  division  upon  an  important 
measure,  to  resign  his  office.  If  political  self-abnegation  can 
not,  under  written  Constitutions,  be  developed  to  the  extent  in 
dicated,  it  may  be  laid  down  as  certain,  that  no  commonwealth, 
governed  by  such  a  Constitution,  can  long  survive.1 

§  84.  In  the  United  States,  all  Constitutions,  considered  in 
their  evidentiary  character,  with  two  exceptions,  have  been  writ 
ten  Constitutions.  The  peculiar  circumstances  of  our  political 
situation  which  occasioned  this  uniformity  have  been  explained 
in  the  first  chapter.  And  the  exceptions  alluded  to  are  as  sig 
nificant  of  the  principles  which  determined  the  rule  as  the  cases 
strictly  comprised  within  it.  Connecticut  and  Rhode  Island  had 
unwritten  Constitutions  at  the  time  of  the  Revolution,  modeled 
in  general  after  that  of  England,  which  continued  in  force  until 
1818  and  1842  respectively.  The  democratic  character  of  those 
Constitutions  had  so  satisfied  the  people  of  those  colonies,  and 
their  experiences  under  them  of  parliamentary  oppression  had 
been  so  slight,  that  there  seemed  no  need  of  a  change  when  the 
yoke  of  England  was  cast  off.  As  their  rulers  had  not  been  able 
to  oppress  them  under  the  old  order  of  things,  it  was  believed  they 
would  be  unable  to  do  so  under  the  new ;  hence  their  polity  was 
left  unchanged.  In  the  other  colonies,  the  principle  of  express 

1  For  a  vigorous  discussion  of  the  article  of  the  Federal  Constitution  pertain 
ing  to  amendments,  in  which  the  position  is  taken  that  that  article  is  wholly  in 
adequate,  see  Fisher's  Trial  of  the  Constitution,  ch.  i. 


DISTINCTION   BETWEEN   FUNDAMENTAL   AND   ORDINARY  LAWS.     83 

limitation  of  powers  was  universally  adopted.  The  result  has 
been  the  formation  of  a  hundred  or  more  Constitutions,  conform 
ing  strictly  to  the  character  of  written  Constitutions  above  pre 
sented.  Throughout  all  these,  a  family  likeness  is  observable 
in  every  feature,  internal  and  external.  It  will  be  the  object  of 
the  remaining  sections  of  this  chapter  to  point  out  the  varieties, 
the  mutual  relations,  and  the  internal  structure  in  general  of 
these  Constitutions,  so  far  at  least  as  the  exposition  may  tend  to 
aid  us  in  determining  the  powers  and  duties  of  conventions, 
whose  function  it  is  to  frame  them  —  the  real  purpose  of  this 
work. 

§  85.  Before  proceeding  to  the  task  indicated,  however,  it  may 
be  useful  to  ascertain  with  precision  the  distinction  between  a 
Constitution  or  fundamental  ordinance,  and  an  ordinary  municipal 
law.  Both  must  be  denominated  laws,  since  they  are  equally 
"  rules  of  action  laid  down  or  prescribed  by  a  superior."  l  Ordi 
nary  laws  are  enactments  and  rules  for  the  government  of  civil 
conduct,  promulgated  by  the  legislative  authority  of  a  state,  or 
deduced  from  long-established  usage.  It  is  an  important  char 
acteristic  of  such  laws  that  they  are  tentatory,  occasional,  and 
in  the  nature  of  temporary  expedients.  Fundamental  laws,  on 
the  other  hand,  in  politics,  are  expressions  of  the  sovereign  will 
in  relation  to  the  structure  of  the  government,  the  extent  and 
distribution  of  its  powers,  the  modes  and  principles  of  its  oper 
ation,  and  the  apparatus  of  checks  and  balances  proper  to  insure 
its  integrity  and  continued  existence.  Fundamental  laws  are 
primary,  being  the  commands  of  the  sovereign  establishing  the 
governmental  machine,  and  the  most  general  rules  for  its  oper 
ation.  Ordinary  laws  are  secondary,  being  commands  of  the 
sovereign,  having  reference  to  the  exigencies  of  time  and  place 
resulting  from  the  ordinary  working  of  the  machine.  Funda 
mental  laws  precede  ordinary  laws  in  point  of  time,  and  em 
brace  the  settled  policy  of  the  state.  Ordinary  laws,  are  the 
creatures  of  the  sovereign,  acting  through  a  body  of  function 
aries  existing  only  by  virtue  of  the  fundamental  laws  and  ex 
press,  as  we  have  said,  the  expedient,  or  the  right  viewed  as 
the  expedient,  under  the  varying  circumstances  of  time  and 
place. 

§  86.  It  is  perhaps  possible  best  to  illustrate  the  distinction 
1  Worcester's  Dictionary,  in  verb. 


84    DISTINCTION   BETWEEN   FUNDAMENTAL    AND    ORDINARY   LAWS. 

between  fundamental  and  ordinary  laws,  by  considering  the  case 
of  a  ship  dispatched  by  its  owner  upon  a  distant  voyage. 

It  would  obviously  be  in  the  power  of  the  owner  to  prescribe 
in  advance  as  well  the  particular  duties  of  the  captain  and  crew 
from  day  to  day,  as  the  general  nature  and  purpose  of  the  ad 
venture.  But,  how  would  a  prudent  owner  manage  in  such  a 
case  ?  He  would  content  himself  with  dictating  the  termini 
and  object  of  the  voyage,  the  rank  and  pay  of  the  various  offi 
cers,  to  which  he  might  add  general  directions  for  the  safety  of 
the  freight  and  the  health  and  comfort  of  the  crew.  Beyond 
this,  every  thing  relating  to  the  voyage  would  be  left  to  the  offi 
cers.  They  would  make  rules  for  particular  exigencies,  as  they 
should  arise,  direct  when  to  tack,  when  to  furl  and  when  to 
unfurl  the  sails  to  conform  to  the  variations  of  the  weather,  and 
prescribe  the  particular  course  in  which  to  steer  from  'day  to  day, 
to  avoid  rocks  and  shoals,  keeping  constantly  in  view,  neverthe 
less,  and,  as  far  as  practicable,  acting  in  literal  conformity  to  the 
owner's  instructions.  Now,  such  general  directions  relating  to 
the  objects  of  the  voyage,  the  equipment  of  the  ship,  and  the 
number  and  duties  of  those  to  whom  her  management  should 
be  intrusted,  as  it  would  be  practicable  to  lay  down  in  advance, 
as  being  not  only  thoroughly  settled  in  the  owner's  mind,  but  as 
applicable  under  all  circumstances  of  wind  and  weather,  and  in 
any  probable  condition  of  the  ship,  might  be  considered  as  fun 
damental  to  the  adventure,  and  as  proper  for  a  prudent  owner 
to  prescribe.  All  such  regulations,  on  the  other  hand,  and  all 
such  devices  and  arrangements  as  would  show  themselves  to  be 
necessary  only  from  time  to  time  as  the  voyage  should  progress 
to  protect  the  ship,  freight,  or  crew,  in  special  emergencies,  or  to 
advance  the  general  purposes  of  the  voyage,  would  not  be  fun 
damental,  because  not  only  would  they  be  of  less  general  conse 
quence,  but  they  would  depend  on  circumstances  that  would  be 
casual,  and,  therefore,  not  to  be  foreseen ;  and  hence  they  would 
properly  be  left  to  the  discretion  of  the  master  on  the  spot. 

§  87.  The  comparison  of  a  commonwealth  to  a  ship  has  been 
a  favorite  conception  of  poets  and  philosophers  in  all  ages,  but 
I  doubt  if  in  any  respect  the  parallelism  between  them  is  so 
complete  as  in  that  specified  above.  I  shall  not  occupy  further 
space  by  pointing  out  minutely  wherein  that  parallelism  consists, 
but  observe  simply  that  the  important  points  are,  first,  that  fun- 


VARIETIES   OP   CONSTITUTIONS   IN   THE   UNITED   STATES.  85 

damental  laws  are  either  structural,  or  expressive  of  the  settled 
policy  of  the  state  ;  and  second,  that  they  may,  consequently,  be, 
as  they  theoretically  are,  laid  down  in  advance,  for  ages  to  come  ; 
whilst,  on  the  contrary,  ordinary  laws  are  merely  temporary 
expedients  or  adjustments,  and  cannot  be  allowed  to  stiffen  into 
constitutional  provisions  without  extreme  danger  to  the  com 
monwealth  ;  that,  in  other  words,  they  have  no  place  in  a  Con 
stitution,  and,  therefore,  as  will  be  more  fully  shown  in  a  subse 
quent  chapter,  are  not  proper  subjects  for  the  action  of  bodies 
charged  with  framing  Constitutions. 

§  88.  The  Constitutions  framed  for  the  United  States,  and  for 
its  several  component  States,  have  all,  save  two,  been  written 
Constitutions  ;  and,  in  the  two  States  whose  Constitutions,  as 
already  explained,  were  originally  unwritten,  written  Constitu 
tions  have  lately  been  adopted.  Of  the  whole  number  of  Con 
stitutions  thus  far  framed  in  the  United  States,  there  have  been 
two  distinct  varieties,  namely,  those  framed  for  the  general  gov 
ernment,  and  those  framed  for  the  several  States.  The  charac 
teristic  differences  between  these  varieties  depend  upon  the 
extent  of  the  grants  of  power  to  them  respectively,  and  upon 
the  modes  in  which  the  limits  of  the  several  grants  are  deter 
mined.  In  the  two  Constitutions  of  the  Union,  the  Articles  of 
Confederation  and  the  existing  federal  charter,  the  sum  of  the 
powers  granted  was  comprised  in  several  particular  grants,  and 
it  was  declared  that  the  governments  thereby  established  were 
confined  to  the  exercise,  the  former,  of  powers  "  expressly  dele 
gated"  and  the  latter,  of  powers  "  delegated"  by  that  term 
designating,  as  it  has  been  construed,  express  powers,  and  such 
as  are  necessary  to  carry  into  effect  express  powers.  In  these 
Constitutions,  limitations  of  the  grants  of  power  are  involved  in 
the  very  terms  in  which  they  are  made,  the  clear  import  of  the 
instruments  being,  without  an  express  declaration  to  that  effect, 
that  no  power  not  affirmatively  authorized  by  them  can  be  exer 
cised.  In  other  words,  the  governments  of  the  United  States 
delineated  in  those  Constitutions  were  governments  of  limited 
powers,  but  of  powers  ranking  highest  in  the  political  scale,  and 
within  the  scope  of  those  powers,  they  were  supreme.  This  is 
more  particularly  true  of  the  Federal  government  than  of  the 
Confederation,  though  substantially  so  of  that  also, 

§  89.  To  the  State  governments,  on  the  contrary,  were  appor- 


86  THE   FEDERAL   CONSTITUTION. 

tioned  the  residuary  powers,  or  most  of  them,  not  comprised  in 
the  federal  grants.  Thus,  under  the  Confederation,  according  to 
the  articles  establishing  it,  each  State  retained  every  power,  juris 
diction,  and  right  not  expressly  delegated  to  the  United  States ; 
that  is,  retained  the  sum  total  of  the  residuary  powers.  When 
the  new  Constitution,  however,  went  into  effect  in  1789,  the 
State  governments  were  vested  by  the  people  of  the  Union  with 
such  of  the  residuary  powers  only  as  were  not  reserved  to  the 
latter;1  which  reserved  powers  were,  first,  such  sovereign  powers 
as  are  not  delegated  to  the  ordinary  departments  of  our  govern 
ments,  as  that  of  amendment ;  and,  secondly,  such  as,  not  being 
delegated  to  the  Federal  government,  were  prohibited  to  those  of 
the  States.  Conceiving  of  the  State  governments,  as  we  must, 
whatever  the  historical  fact  may  be,  as  erected  subsequently  to 
that  of  the  Union,  they  took  all  such  powers  as  the  people  had 
to  give  except  where  the  contrary  was  expressed  or  from  the 
nature  of  the  case  implied.  In  other  words,  the  State  govern 
ments  were  made  governments  of  general  powers,  except  when 
limited  by  the  principles  of  morality  or  by  the  terms  of  the 
Federal  Constitution. 

§  90.  The  Federal  Constitution  being  designed  particularly  to 
delineate  the  structure  and  powers  of  the  Federal  government,  it 
touches  upon  those  of  the  States  only  so  far  as  they  are  related 
to  that  of  the  Union,  and  that  with  a  view  to  prevent  collisions. 
It  therefore  deals  in  this  respect  only  in  prohibitions  to  the  States. 
The  State  constitutions,  on  the  other  hand,  contain  affirmative 
grants  of  power,  and  the  mode  of  making  them  is  to  give  to 
their  governments  powers,  as  of  legislation,  in  general  terms,  and 
afterwards  to  limit  those  powers,  if  deemed  desirable,  by  express 
provisions.  Within  the  general  domain  allotted  to  the  States, 
then,  whatever  any  government  can  of  right  do,  a  State  govern 
ment  can  do.  The  government  of  the  Union,  on  the  other  hand, 
though  permitted  a  discretion  as  to  modes  of  carrying  into  effect 
its  granted  powers,  can  do  only  what  it  is  affirmatively  author 
ized  to  do  —  finding  itself  hedged  in  from  the  general  mass 
of  governmental  powers,  while  those  of  the  States  are  free  to 

1  The  words  of  the  1  Oth  amendment  are  :  "  The  powers  not  delegated  to  the 
United  States  by  the  Constitution,  nor  prohibited  by  it  to  the  States,  are  reserved 
to  the  States  respectively,  or  to  the  people,"  —  not  to  the  people  of  the  States, 
but  to  the  people  of  the  Union,  who  make  the  grant. 


STATE  CONSTITUTIONS  PART  OP  CONSTITUTION  OP  UNITED  STATES.    87 

expatiate  at  large,  save  where  powers  are  hedged  in  from 
them. 

§  91.  These  peculiarities  of  structure  and  function  give  rise 
to  special  rules  of  construction,  depending  on  the  differences 
mentioned.  Thus,  although  within  the  sphere  of  its  acknowl 
edged  powers,  the  general  government  is  entitled  to  all  liberal 
intendments,  still,  in  determining  that  sphere,  it  is  a  presumption 
of  law  that  a  power  does  not  belong  to  it,  unless  it  be  expressly 
granted,  or  be  necessary,  in  a  legal  sense,  to  carry  into  effect 
some  power  expressly  granted.  This  follows  from  the  fact  that 
it  is  a  government  of  enumerated  powers.  Within  the  sphere 
of  their  powers,  on  the  other  hand,  while  the  States  are  entitled 
to  liberal  intendments  and  to  complete  dominion,  save  where 
some  of  their  powers  are  concurrent  with  those  of  the  govern 
ment  of  the  Union,  the  presumption,  in  determining  that  sphere, 
is,  that  a  power  belongs  to  them  if  the  contrary  do  not  appear 
by  a  fair  construction  of  their  own  Constitutions  and  that  of  the 
United  States.  This  results  from  the  fact  that  they  are  vested 
with  all  the  powers  not  granted  to  the  general  government  nor 
reserved  to  the  people. 

§  92.  And  here  I  may  remark  that  the  Constitution  of  the 
United  States  is  a  part  of  the  Constitution  of  each  State,  whether 
referred  to  in  it  or  not,  and  that  the  Constitutions  of  all  the  States 
form  a  part  of  the  Constitution  of  the  United  States.  An  aggre 
gation  of  all  these  constitutional  instruments  would  be  precisely 
the  same  in  principle  as  a  single  Constitution,  which,  framed  by 
the  people  of  the  Union,  should  define  the  powers  of  the  general 
government,  and  then  by  specific  provisions  erect  the  separate 
governments  of  the  States,  with  all  their  existing  attributions  and 
limitations  of  power.  There  is  not  a  particle  of  question  that 
the  people  of  the  United  States  could  have  thus  framed  their 
Constitution,  had  it  been  thought  advisable,  or  that  they  could 
still  —  whether  regularly  or  not  is  another  question  —  melt  the 
thirty  odd  Constitutions  into  a  single  one.  To  do  the  latter, 
undoubtedly  they  must  first  recall  the  power,  conceded  by  the 
existing  Constitution  to  the  people  of  the  several  States,  to  frame, 
each  in  a  quasi  sovereign  capacity,  its  own  Constitution.  But 
this,  if  they  are  the  sovereign,  they  unquestionably  have,  if  not 
the  legal  competence,  at  least  the  physical  ability  to  do ;  or  they 


88       RELATIVE   RANK   OF   STATE   AND   FEDERAL   CONSTITUTIONS. 

may  even,  as  we  have  seen,  under  like  conditions,  abolish  the 
States,  as  distinct  political  organizations.1 

§  93.  It  follows  from  the  principles  above  announced,  regu 
lating  the  distribution  of  powers  to  the  Federal  and  State  gov 
ernments,  that  they  are  both  really  governments  of  limited 
jurisdiction ;  and  that  they  are  equally  required  to  confine 
themselves  to  the  exercise  of  granted  powers.  Hence  it  would 
seem  to  follow  that  they  are  equal  to  each  other.  If  it  were 
objected  to  this  conclusion,  that  the  rules  of  construction  just 
explained  indicate  a  superiority  of  the  powers  appropriated  to 
the  States,  in  point  of  breadth  or  scope,  it  may  be  replied,  that, 
while  that  is  true,  those  powers  are  of  a  grade  far  less  exalted 
than  those  apportioned  to  the  general  government.  On  the 
whole,  laying  out  of  view  all  positive  provisions  subordinating 
either  to  the  other,  the  two  systems  of  government,  State  and 
Federal,  save,  perhaps,  in  notoriety  or  eclat  abroad,  must  be  pro 
nounced  equal.  But,  when  reference  is  made  to  the  Federal 
Constitution,  it  is  found  that  a  subordination  is  established  by 
positive  regulation.  Article  VI.  declares  that  "  this  Constitution 
and  the  laws  made  in  pursuance  thereof,  and  all  treaties  made,  or 
which  shall  be  made,  under  the  authority  of  the  United  States,  shall 
be  the  supreme  law  of  the  land;  "  to  which  is  added  a  provision 
that  all  legislative,  executive,  and  judicial  officers  of  both  Federal 
and  State  governments  "  shall  be  bound  by  oath  or  affirmation 
to  support  this  Constitution."  From  these  clauses,  it  is  evident 
the  government  of  the  Union  is  made,  in  some  of  its  operations, 
to  be  supreme  over  those  of  the  States.  As  each  of  the  two  is 
of  course  absolute  within  the  field  appropriated  to  itself,  the 
supremacy  referred  to  must  relate  to  the  exercise  of  powers  not 
recognized  as  absolutely  belonging  to  either,  but  such  as  are 
denominated  concurrent,  or  as  lie  on  the  boundary  between  the 
two,  and  respecting  which  there  may  be  doubts  to  which  gov 
ernment  they  belong.  Thus,  it  would  be  wrong  to  say  that  the 
Federal  government  is  supreme  over  those  of  the  States  in  the 
matter  of  declaring  war,  for  that  power  belongs  exclusively  to 
the  general  government.  So  it  would  be  improper  to  say  of  a 
State  that  it  is  supreme  over  the  general  government,  in  the  exer 
cise  of  a  power  to  which  the  latter  can  make  no  pretence,  but 
l  See  ante,  §§  56-58. 


STATE  AND  FEDERAL  CONSTITUTIONS  SHOULD  BE  KEPT  DISTINCT.     89 

which  certainly  belongs  to  the  former.1  Supreme  implies  a 
comparison  of  power,  and  in  these  cases  there  could  be  no 
comparison,  because  one  has  all  the  power  and  the  other  has 
none. 

§  94.  It  is,  therefore,  only  on  those  points  where  the  regula 
tions  of  the  two  governments,  in  the  shape  of  State  laws  or 
Constitutions  on  the  one  hand,  and  the  Constitution,  laws,  or 
treaties  of  the  Union,  on  the  other,  come  in  conflict,  that  the 
conditions  of  supremacy  can  exist.  If  a  power  is  concurrent 
in  the  two,  its  exercise  by  the  States  must  be  subordinated  to  its 
exercise  by  the  general  government,  where  both  cannot  exercise 
it  fully  without  collision.  So,  where  a  power  may  fairly  be 
claimed  to  belong  to  both  jurisdictions,  if  it  be  asserted  by  the 
general  government,  it  becomes  pro  tanto,  on  account  of  its 
supremacy,  rightful  to  it  alone.  That  is  the  supremacy  meant 
by  the  constitutional  provision.  As  the  authors  of  the  "  Feder 
alist"  have  shown,  it  expresses  but  the  condition  on  which  alone 
a  complex  system  of  government  by  means  of  distinct  and  yet 
not  wholly  independent  political  organizations,  like  ours,  can 
exist.  Either  the  States  must  be  subordinated  to  the  Union,  or 
the  Union  must  be  subordinated  to  the  States;  in  which  latter 
case,  as  they  well  observed,  "  the  world  would  have  seen  for  the 
first  time  a  system  of  government  founded  on  an  inversion  of 
the  fundamental  principles  of  all  government ;  it  would  have 
seen  the  authority  of  the  whole  society  everywhere  subordinate 
to  the  authority  of  the  parts  ;  it  would  have  seen  a  monster,  in 
which  the  head  was  under  the  direction  of  the  members."  2 

§  95.  While  considering  the  relations  of  the  two  varieties  of 
Constitutions  in  the  United  States,  namely,  that  of  the  Union 
and  those  of  the  States,  it  may  be  well  to  remark,  that,  although 
they  together  form  the  Constitution  of  the  Union,  yet,  as  in  the 
ory  their  spheres  of  operation  are  distinct,  so,  in  practice,  they 
should  be  kept  disconnected  in  respect  of  the  rights  and  duties 
apportioned  to  each.  They  ought  not,  in  other  words,  to  make 
themselves  ancillary  to  each  other's  operations.  This  remark  is 
applicable  more  particularly  to  the  Constitutions  of  the  States  in 

1  See  Rutherforth's  definition  of  the  word  "  supreme "  as  distinguished  from 
the  word  "  sovereign,"  ante,  §  18,  note. 

a  Federalist,  No.  44,  by  Madison.  See,  also,  2  Peters'  R.  449 ;  4  Wheaton's 
R.  122. 


90  OPINION   OF   MR.    WEBSTER. 

relation  to  that  of  the  United  States.  Thus,  as  the  right  to  coin 
money  is  given  exclusively  to  the  general  government,  counter 
feiting  the  national  coin  is  properly,  as  such,  an  offence  only 
against  the  United  States,  and  ought  to  be  punished  by  it  alone. 
For  a  State,  either  in  its  Constitution  or  laws,  to  make  provision 
for  punishing  it,  would  be  inexpedient,  if  not  a  breach  of  con 
stitutional  duty.  If  the  governments  founded  by  the  people  of 
the  United  States,  and  charged  with  distinct  and  independent 
functions,  are  unable  to  sustain  themselves  without  extra-con 
stitutional  aid  from  each  other,  that  would  be  a  reason  for 
applying  to  the  original  fountain  of  authority  for  an  increase  of 
their  powers,  not  for  exceeding  their  respective  jurisdictions,  with 
a  view  to  effect  what  can  only  be  properly  done  by  the  people 
themselves.  Such  an  assumption  of  power  would  be  for  our 
legislative  bodies  to  make,  not  to  administer,  the  fundamental 
laws. 

This  idea  was  admirably  enforced  by  Mr.  Webster  in  the 
Massachusetts  Convention  of  1820.  He  said :  It  was  inexpe 
dient  to  connect  "  the  State  Constitution  with  provisions  of  the 
National  Constitution.  He  thought  it  tended  to  no  good  conse 
quence  to  undertake  to  regulate  or  enforce  rights  and  duties 
arising  under  the  general  government,  by  other  means  than  the 
powers  of  that  government  itself.  He  would  wish  that  the  Con 
stitution  of  the  State  should  have  as  little  connection  with  the 
Constitution  of  the  United  States  as  possible.  Some  of  the 
States  have  sometimes  endeavored  to  come  in  aid  of  the  general 
government,  and  to  enforce  its  laws,  by  their  own  laws.  State 
statutes  had  been  passed  to  compel  compliance  with  statutes  of 
Congress,  and  imposing  penalties  for  transgressing  those  statutes. 
This  had  been  found  very  embarrassing,  and,  as  he  thought, 
mischievous,  because  its  tendency  was  to  mix  up  the  two  gov 
ernments,  and  to  destroy  the  real  essential  distinction  which 
exists  between  them.  The  true  constitutional,  harmonious  move 
ment  of  the  two  governments  was  as  much  interrupted  by  their 
alliance  as  by  their  hostility.  They  were  ordained  to  move  in 
different  spheres,  and  when  they  came  together,  be  it  for  the  pur 
pose  of  mutual  harm  or  mutual  help,  the  system  is  deranged. 
Whatsoever  was  enjoined  on  the  legislature  by  the  Constitution 
of  the  United  States,  the  legislature  was  bound  to  perform  ;  and 
he  thought  it  would  not  be  well  by  a  provision  of  this  Constitu- 


BILLS   OF   RIGHTS.  91 

tion  to  regulate  the  mode  in  which  the  legislature  should  exer 
cise  a  power  conferred  on  it  by  another  Constitution."  l 

§  96.  I  pass  now  to  consider  briefly  the  internal  structure  of 
written  Constitutions,  as  they  exist  in  the  United  States. 

The  American  Constitutions  commonly  consist  of  three  dis 
tinct  parts  :  1.  The  Bill  of  Rights.  2.  The  Frame  of  Government. 
3.  The  Schedule.  Of  these,  the  first  two  are  generally  present, 
though  often  blended  together,  and  not  in  separate  parts.  The 
third,  especially  in  the  earlier  Constitutions,  is  not  always  found. 

1.  A  Bill  of  Rights  consists  of  solemn  declarations  of  abstract 
principles,  relating  to  the  origin,  ground,  and  purposes  of  govern 
ment,  and  practical  injunctions  and  prohibitions,  promulgated 
with  a  view  to  its  safe  and  equitable  administration,  digested 
out  of  the  experience  of  the  free  peoples  of  England  and  Amer 
ica  during  six  hundred  years  of  struggle  for  constitutional  lib 
erty,  and  intended  as  at  once  a  guide  and  a  limitation  to  the 
government  in  the  exercise  of  power.  I  call  the  principles  em 
bodied  in  a  Bill  of  Rights  abstract,  but  only  in  deference  to  the 
common  forms  of  speech,  which  thus  characterize  whatever  is. 
viewed  as  disconnected  from  the  circumstances  of  time  and 
place.  Properly  considered,  however,  those  principles  are  the 
most  concrete  of  all,  as  being  such,  not  simply  under  certain 
conditions,  but  irrespective  of  all  conditions. 

In  the  progress  of  English  liberty  during  the  period  men 
tioned,  there  have  been  taken  these  cardinal  steps :  1.  The 
Magna  Charta,  with  its  thirty  confirmations  by  the  Plantagenets 
and  Tudors ;  2.  The  Petition  of  Right,  addressed  by  the  Parlia 
ment  to  the  second  of  the  Stuarts  ;  3.  The  Declaration  of  Right, 
made  by  the  Convention  Parliament  on  the  restoration  of  Charles 
II. ;  4.  The  Habeas  Corpus  Act,  passed  in  the  thirty-first  year  of 
his  reign ;  and,  5.  The  Act  of  Settlement  by  which  the  crown 
was  settled  upon  William  and  Mary  in  1689,  upon  terms  and 
conditions  imposed  by  a  second  Convention  Parliament,  being 
the  crowning  stone  in  the  arch  of  English  freedom.  The  liber 
ties  wrought  out  or  secured  by  these  famous  Acts,  were  as  much 

l  Deb.  Mass.  Conv.,  1820,  p.  112.  It  has  even  been  made  a  question  whether 
a  State  Constitution  ought  to  provide  for  taking  an  oath  to  support  the  Constitu 
tion  of  the  United  States.  See  Deb.  Penn.  Conv.,  1837,  Vol.  I.  pp.  195-215. 
See,  also,  on  the  general  question  discussed  in  the  text,  Deb.  Ohio  Conv.,  1850, 
pp.  233-236. 


92  BILLS   OF   RIGHTS. 

those  of  English  freemen  living  in  America  as  of  those  dwelling 
in  England.  They  were  perhaps  even  more  fondly  cherished  by 
the  former  than  by  the  latter,  since  circumstances  taught  them 
more  clearly  their  great  value,  and  the  precarious  tenure  by 
which  they  were  held.  Accordingly,  in  all  the  public  papers 
emitted  by  the  colonies  during  their  struggle  with  England,  they 
grounded  themselves  distinctly  on  these  great  constitutional  acts. 
Indeed,  it  is  now  admitted  by  the  political  writers  of  England, 
that  it  was  our  fathers  alone  who  held  aloft  the  liberties  of  Eng 
land  for  Englishmen  themselves  in  that  struggle,  and  that  the 
triumph  of  the  crown  would  probably  have  been  the  downfall 
of  the  entire  Constitution,  built  up  with  such  infinite  toil  and 
blood.1 

§  97.  When  it  became  apparent,  accordingly,  in  the  course 
of  our  Revolutionary  struggle,  that  independence  was  inev 
itable,  and  the  colonies  came  to  provide  regular  governments 
based  on  the  authority  of  the  people,  they  sought  to  erect  at  the 
same  time  a  system  of  guaranties  of  their  old-time  liberties. 
To  this  end,  in  imitation  of  their  ancestors,  they  engraved  the 
maxims  and  principles  forming  the  most  valued  portions  of 
those  acts  —  all  of  them,  indeed,  that  were  deemed  applicable  to 
their  condition  and  circumstances  —  upon  the  front  of  their  con 
stitutional  charters,  as  if  for  a  perpetual  caveat  to  their  rulers. 
To  realize  the  great  value  of  these  principles,  I  have  but  to 
refer  to  a  few  of  the  most  important  and  well  known  of  them. 
They  were  :  That  no  freeman  ought  to  be  taken,  imprisoned,  or 
disseized  of  his  freehold,  liberties,  or  privileges,  or  outlawed  or 
exiled,  or  in  any  manner  destroyed  or  deprived  of  his  life,  liberty, 
or  property  but  by  the  law  of  the  land  :  That  the  people  ought 
not  to  be  taxed,  or  made  subject  to  the  payment  of  any  impost 
or  duty,  without  the  consent  of  themselves,  or  their  representa 
tives  in  General  Assembly,  freely  given :  That  no  freeman 
should  be  convicted  of  any  crime  but  by  the  unanimous  ver 
dict  of  a  jury  of  good  and  lawful  men,  in  open  court,  as  there 
tofore  used  :  That  excessive  bail  should  not  be  required,  nor 
excessive  fines  imposed,  nor  cruel  or  unusual  punishments  in 
flicted:  That  the  freedom  of  the  press  was  one  of  the  great 
bulwarks  of  liberty,  and  therefore  ought  never  to  be  restrained : 
That  for  redress  of  grievances,  and  for  amending  and  strength- 

1  May's  Const.  Hist,  of  England,  Vol.  II.  pp.  28-30. 


BILLS   OF   RIGHTS.  93 

ening  the  laws,  elections  ought  to  be  often  held :  That  per 
petuities  and  monopolies  were  contrary  to  the  genius  of  a  free 
state,  and  ought  not  to  be  allowed.  To  these  were  added  pro 
hibitions  against  general  warrants,  standing  armies,  ex  post  facto 
laws,  the  suspension  of  laws  or  the  granting  of  hereditary  emol 
uments  or  privileges,  and  injunctions  designed  to  secure  the 
privilege  of  the  writ  of  Habeas  Corpus,  the  right  of  petition  and 
of  freely  assembling,  the  freedom  of  worship  and  of  the  press, 
and  the  establishment  of  a  militia  for  the  public  defence. 

§  98.  As  is  generally  the  case  with  constitutional  provisions, 
these  principles  are  not  couched  in  the  technical  language  of 
laws,  nor  are  they  coupled  with  sanctions.  But  it  is,  neverthe 
less,  impossible  to  overstate  their  importance  as  guides  to  the 
departments  of  government  in  the  exercise  of  their  functions.1 
From  the  nature  of  the  State  governments,  this  is  true  especially 
of  them.  To  a  government  like  the  Federal,  whose  powers  are 
such  only  as  have  been  expressly  granted,  or  as  are  necessary  to 
carry  into  effect  such  as  are  expressly  granted,  the  range  for 
aberrations  from  constitutional  paths,  and  therefore  the  need  of 
cautionary  or  restrictive  maxims,  are  much  less  than  in  govern 
ments  constructed  like  those  of  the  States.  Accordingly  there 
was  no  Bill  of  Rights  in  the  Federal  Constitution  as  originally 
framed,  nor  properly  afterwards,  though  the  amendments  carried 
soon  after  its  establishment  consisted  almost  exclusively  of  prin 
ciples  usually  embodied  in  Bills  of  Rights.  The  reason  for  en 
acting  these  amendments  was,  that  the  people  of  the  United 
States  were  not  content  to  rest  their  liberties  upon  any  con 
stitutional  inability  of  the  Federal  government  to  infringe  them. 
Such  a  security  was  a  negative  one,  at  best,  and  subject  always 
to  be  neutralized  by  construction  in  the  wide  field  of  incidental 
powers.  They  insisted  upon  positive  landmarks,  and  not  only 
that,  but  upon  the  erection  of  such  a  barrier  of  principles  and 
asserted  rights  as  should  deter  any  but  the  intentional  usurper 
from  passing  the  line  of  permitted  powers.  Without  a  tacit 
understanding  that  such  a  barrier  should  be  provided,  it  is 
beyond  question  that  the  system  would  not  have  been  ratified. 
The  case  was  different  with  regard  to  the  State  Constitutions. 
They  contained  grants  of  power  so  extensive  and  so  undefined, 
that  the  propriety  of  prefacing  them  by  declarations  of  rights 
1  Hamilton  v.  St.  Louis  County  Court,  15  Mo.  R.  1,  (23). 


94  FRAME   OP  GOVERNMENT. 

was  never  denied  or  even  doubted ;  and,  as  we  have  seen, 
though  there  have  been  exceptions,  in  general  all  Constitutions 
of  that  class  have  contained  Bills  of  Rights. 

§  99.  The  chief  practical  advantage  of  Bills  of  Rights,  as 
above  intimated,  is  that  they  furnish  a  guide  to  the  depart 
ments  of  the  government  in  the  exercise  of  their  powers  and 
duties  in  cases  of  doubt.  They  are  for  them  what  prudential 
maxims  resulting  from  individual  experience  are  for  men  in 
the  ordinary  concerns  of  life.  But  the  experience  from  which 
the  former  are  drawn  is  that  of  society,  accumulated  in  the 
course  of  many  centuries,  and  so,  not  likely  to  be  that  also 
of  the  individuals  who  administer  the  government,  nor  to  be 
known  to  them  unless  specially  inculcated  in  some  conspicuous 
manner.  It  is  upon  the  determinations  of  courts  of  justice  that 
they  have  the  most  direct  and  beneficial  effect.  In  questions 
of  constitutional  power  or  duty,  in  their  bearing  upon  private 
rights,  they  are  an  invaluable  guide,  and  our  books  of  reports 
are  filled  with  cases,  the  decisions  of  which  turned  upon  the 
principles  embodied  in  them.  These  principles,  indeed,  may 
be  distinguished  from  the  provisions  of  that  part  of  the  Con 
stitution  denominated  the  Frame  of  Government,  as  embracing, 
the  former,  guaranties  for  private  rights,  and  the  latter  provisions 
relating  to  the  policy  of  the  State  and  to  its  political  power  and 
organization.1  It  being  impossible  in  general  language  to  lay 
down  rules  for  the  determination  of  particular  cases,  our  courts 
would,  on  very  many  questions  of  construction,  be  wholly  afloat, 
without  the  fixed  principles  of  public  policy  and  private  right 
laid  down  in  our  Bills  of  Rights. 

§  100.  2.  The  Frame  of  Government  is  that  part  of  a  written 
Constitution  in  which  are  described  the  structure  and  functions 
of  the  government ;  that  is,  the  distribution  of  political  power, 
the  particular  agencies  which  are  to  wield  it,  the  extent  and 
duration  of  their  authority,  their  emoluments,  modes  of  appoint 
ment  or  election,  and  the  apparatus  designed  for  amending  or 
reproducing  the  system.  Though  in  general  all  official  persons 
and  duties  are  delineated  in  this  part  of  the  Constitution,  there 
are  some  exceptions,  as  in  case  of  sheriffs,  whose  election  merely 
is  regulated,  without  specifying  their  duties  or  powers.  They 
being  officers  well  known  at  common  law,  a  description  of  those 
1  Sedgwick  on  Slat,  and  Const.  Law,  pp.  475-6. 


THE    SCHEDULE.  95 

particulars  is  deemed  unnecessary,  as  being  involved,  to  the  com 
mon  apprehension,  in  the  name  of  the  office.  The  same  is  true 
of  some  other  functionaries,  as  coroners,  the  higher  military  offi 
cers,  judges  of  the  courts,  and  others. 

§  101.  In  the  Frame  of  Government  are  often,  especially  in  the 
later  Constitutions,  included  also  positive  provisions  relating 
rather  to  the  general  policy  of  the  State  than  to  its  political 
power  or  organization.  Thus,  many  contain  clauses  designed  to 
promote  education,  to  encourage  charitable  institutions,  to  deter 
mine  the  status  of  the  citizens  of  the  State,  as  slave  or  free,  or  to 
regulate  corporate  rights,  as  of  banks  or  of  railroad  companies, 
or  the  privileges  of  particular  classes  of  citizens,  such  as  home 
stead  exemption,  rights  of  married  women,  and  the  like.  Indeed, 
as  Constitutions  embody  settled  policy,  as  well  as  the  general 
features  of  the  political  organization,  so  fast  as  measures  of  pol 
icy  become  really  settled,  that  is,  removed  from  the  arena  of 
party  conflict,  they  are  commonly  enshrined  in  the  Constitution, 
so  that  every  generation,  in  communities  like  ours  open  to  prog 
ress,  witnesses  an  extension  of  these  provisions  in  our  funda 
mental  charters.  Beside  these  provisions,  State  Constitutions 
usually  contain  others  defining  the  boundaries  of  the  territory 
claimed  as  within  their  jurisdiction  ;  and,  in  close  relation  thereto, 
announcing  the  State  policy  with  reference  to  the  management 
and  disposition  of  the  public  domain,  or  to  internal  improve 
ments. 

§  102.  3.  The  Schedule  is  that  part  of  a  written  Constitution 
in  which  are  comprised  provisions  deemed  necessary  —  1,  to  ascer 
tain  the  will  of  the  people  with  respect  to  the  adoption  of  the 
instrument,  matured  by  a  Convention,  as  the  Constitution  of  the 
State  ;  2,  to  effect,  without  inconvenience  or  embarrassment,  the 
transition  from  the  old  to  the  new  order  of  things,  and  to  save 
rights,  acquired  under  existing  laws,  from  lapsing  by  their  re 
peal;  3,  to  set  up  and  put  in  operation  the  institutions  and 
agencies  described  in  the  Constitution,  so  far  as  not  already  in 
operation.  These  provisions  are  mostly  temporary  in  purpose 
and  effect ;  and  although  they  are,  some  of  them,  of  a  character 
more  or  less  fundamental,  they  seem  incongruous  with  the  per 
manent  provisions  of  the  Constitution,  properly  so  called,  and 
with  the  Bill  of  Rights.  Beside  these,  which  are  the  usual  and 


96  THE  SCHEDULE. 

proper  contents  of  a  Schedule,  are  sometimes  found  others,  whose 
true  place  is  in  the  Frame  of  Government,  or  whose  character 
is  such  that  they  cannot  rightfully  find  any  place  in  a  Con 
stitution.  Of  the  former,  sections  relating  to  subjects  treated  of 
in  the  body  of  the  instrument,  but  bearing  upon  points  which 
have  apparently  been  forgotten,  or  which  are  mere  after-thoughts, 
are  instances.  It  is,  perhaps,  rather  a  sense  of  logical  complete 
ness  and  order  than  substantial  propriety  which  is  offended  by 
such  provisions ;  but  if  a  Schedule  is  a  proper  subdivision  of  a 
Constitution,  it  should  be,  not  in  the  nature  of  a  labor-saving 
postscript,  made  at  the  expense  of  clearness  and  finish,  but  of  an 
appendix,  in  which  to  gather  provisions  of  a  temporary  and  mis 
cellaneous  character,  related  to  the  instrument  in  the  main  only 
as  subservient  to  its  general  objects.  Among  provisions  which 
ought  to  find  no  place  in  a  Constitution  at  all,  but  which  are, 
nevertheless,  occasionally  placed  in  a  Schedule,  may  be  men 
tioned  laws  or  ordinances  relating  to  the  submission  of  the  Con 
stitution  to  the  people,  to  take  effect  at  once,  in  cases  where 
power  to  make  such  laws  or  ordinances  has  been  expressly  with 
held  by  the  legislature  calling  the  Convention,  or  where  different 
directions  have  already  been  given  to  that  end  by  the  legislature 
itself,  and,  perhaps,  where  the  legislature  has  been  altogether 
silent  on  the  subject  of  submission.  The  objection  to  such  pro 
visions  is,  that  they  are  exercises  of  a  legislative  discretion  not 
belonging  to  a  Convention :  and  as,  from  the  nature  of  the  case, 
the  action  of  such  a  body,  in  placing  them  in  the  Schedule  as  rules 
of  conduct,  cannot  be  revised,  but  is  definitive,  it  is  an  excess 
of  authority  to  assume  to  enact  them.  Whether  or  not  it  might 
be  allowable  to  make  such  provisions  in  the  case  last  supposed, 
where  the  legislature  has  been  silent  on  the  subject  of  submis 
sion,  or  of  the  time  and  mode  in  which  it  shall  be  made,  is  a 
fair  subject  for  argument,  which  will  be  considered  in  a  subse 
quent  chapter. 

§  103.  It  should  be  noted  that  the  Schedule  did  not  make  its 
appearance  until  after  the  first  batch  of  Constitutions,  including 
those  of  the  Union,  had  been  framed  and  put  in  operation.  The 
first  Constitutions  in  which  it  was  used  were  those  of  South  Car 
olina  and  Pennsylvania,  framed  in  1790.  Of  the  Constitutions 
now  in  force,  only  about  two  in  three  have  them,  though  in  a 


THE   SCHEDULE.  97 

few  instances  a  separate  article  containing  similar  provisions  is 
embraced  in  the  Constitution,  without  special  designation,  or 
under  the  title  of  General  Provisions. 

Before  leaving  the  subject  of  Constitutions,  it  is  proper  to  ob 
serve,  that,  wherever  in  this  work  the  term  "  Constitution  "  is 
used,  a  written  Constitution  will  be  intended,  unless  the  con 
trary  be  indicated. 


CHAPTER  IV. 

§  104.  HAVING,  in  the  two  preceding  chapters,  considered  the 
doctrine  of  sovereignty,  by  which  are  mainly  to  be  determined 
the  powers  of  the  Constitutional  Convention,  and  defined  what  is 
meant  by  a  Constitution,  to  frame  which  is  the  business  of  that 
body,  I  pass  now  to  a  series  of  inquiries  having  for  their  pur 
pose  to  determine  the  requisites  to  the  legitimacy  of  Constitu 
tional  Conventions,  namely,  first,  What  is  the  proper  mode  of 
initiating1  or  calling  a  Convention?  and,  secondly,  By  whom 
should  Conventions  be  elected  ? 

These  questions  will  form  the  subject  of  the  present  chapter, 
and  will  be  considered  from  two  separate  points  of  view;  1, 
from  that  of  theoretical  principles;  and,  2,  from  that  of  his 
torical  precedents. 

§  105.  Before  entering  upon  the  wide  field  thus  brought  to 
view,  it  will  be  useful  to  ascertain  the  import  of  two  terms, 
which  will  be  very  frequently  used  in  the  course  of  the  discus 
sion,  namely,  legitimacy  and  revolution,  with  their  derivatives. 

The  primary  signification  of  the  term  legitimacy  is  accordance 
with  the  law,  and  it  is  most  commonly  employed  with  reference 
to  the  birth  of  children,  to  characterize  it  as  lawful.  In  European 
governments,  sovereignty  being  generally  ascribed  to  the  reigning 
monarch,  from  whom  it  descends  to  his  offspring,  according  to 
certain  rules,  the  legitimacy  of  a  government  follows  from  the 
personal  legitimacy  of  the  occupant  of  the  throne,  and  vice 
versa;  hence  the  term  has  there  come  to  bear  very  commonly  a 
merely  political  signification  to  characterize  governments  deemed 
to  be  regular  and  lawful,  because,  in  the  devolution  of  the  rights 
of  sovereignty  from  one  incumbent  of  the  throne  to  another,  the 
established  rules  of  legitimate  succession  have  been  observed. 

§  106.  To  the  legitimacy  of  a  prince  of  the  blood,  it  is  essen 
tial  that  he  should  be  the  offspring  of  the  reigning  monarch  and 
his  wife,  begotten  and  born  in  lawful  wedlock  and  during  their 
joint  occupancy  of  the  throne.  This  rule,  though  apparently 


LEGITIMACY.  99 

arbitrary,  is  based  on  the  experienced  necessities  of  state  for 
many  ages  in  the  European  monarchies ;  and,  if  exceptions  to  it 
have  occurred,  they  have  been  rather  acquiesced  in  than  com 
mended,  and  that  from  the  same  considerations  of  expediency 
that  gave  rise  to  the  rule.  To  render  a  government  legitimate, 
then,  the  rule  requires  the  exclusion  from  the  succession  of  all 
persons  not  the  offspring  of  the  royal  pair ;  the  exclusion  of  all 
the  issue  of  them  or  either  of  them  begotten,  or  conceived,  out 
of  the  sovereign  condition,  or  in  a  morganatic  union  of  sovereign 
and  subject ;  and,  especially,  of  their  bastard  issue.  To  realize 
the  importance  of  this  rule,  one  needs  but  to  call  to  mind  the 
wars  of  succession  that  devastated  the  European  monarchies,  be 
fore  it  was  established  or  because  its  application  was  disputed. 

§  107.  Now,  with  the  exception  of  royal  titles  and  the  physical 
circumstances  of  marriage  and  birth  of  children,  which  give  a 
local  coloring  to  the  doctrine  of  legitimacy  in  Europe,  it  is  ap 
plicable,  in  similar  terms  and  for  the  same  reasons,  in  the  United 
States.  It  is  true  here,  as  there,  that,  to  be  lawful  or  legitimate, 
successive  forms  of  government  must  be  the  offspring,  regularly 
and  lawfully  begotten,  the  later  of  the  earlier.  They  must  be 
developed,  one  out  of  the  other,  after  the  order  of  Nature  in  the 
genesis  and  growth  of  her  organic  products.  A  system  of  gov 
ernment,  in  other  words,  having  been  established,  it  must  itself 
govern,  as  well  in  the  matter  of  reproducing  or  repairing  itself  as 
in  that  of  protecting  itself  and  its  subordinate  members  from  the 
operation  of  harmful  agencies  without.  A  government,  once 
founded,  is  the  people,  as  organized  for  the  attainment  of  the 
ends  of  government.  Neither  a  part  nor  all  of  that  people,  in 
their  individual  capacity,  or  acting  as  a  dissociated,  non-organized 
mass,  are  legally  competent  to  change  their  political  structure. 
If  that  is  to  be  done  at  all,  consistently  with  the  integrity  of  the 
government,  or  with  the  safety  or  happiness  of  the  citizens,  it 
must  be  done  through  the  people  themselves,  as  organized  for  the 
purposes  of  government.  In  a  word,  it  is  a  right  of  the  governed 
to  know  where  to  look  for  lawful  successors  to  the  institutions 
and  magistrates  under  which  they  now  live  —  a  thing  impos 
sible  except  when  the  succession  takes  place  according  to  law. 

The  rules  and  legal  principles  by  which  this  right  is  secured 
and  rendered  effectual,  limit  and  explain  the  doctrine  of  legiti 
macy  under  our  system  of  government. 

§  108.  To  determine  whether  an  institution  or  a  public  body, 


100  REVOLUTION. 

claiming  to  exercise  any  of  the  powers  of  sovereignty,  is  legiti 
mate,  in  a  political  sense,  it  is  necessary  to  ask  two  questions : 

1.  Has  it,  in  its  inception,  the   stamp  of  legality  —  of  con 
formity  to  the  law  of  the  land  ? 

2.  Do  the  law  itself  and  the  proceedings  in  which  it  originated 
conform  to  the  fundamental  principles  of  the  Constitution,  and 
to  those  prudential  maxims  which  define  the  limits  and  condi 
tions  of  a  safe  constitutional  rule,  from  the  point  of  view  of  the 
existing  government  ? 

Whatever  can  answer  these  questions  in  the  affirmative  is 
legitimate.  Whatever,  on  the  other  hand,  is  extra  legem,  that 
is,  established  without  law,  and  from  a  point  of  view  external  to 
the  existing  order ;  and  whatever,  more  especially,  is  adverse  in 
its  methods  or  influences,  though  not,  perhaps,  in  its  intent,  to 
the  government  in  being,  or  violates  the  principles  necessary  to 
its  conservation,  is  illegitimate. 

Thus  far  of  the  term  legitimacy. 

§  109.  The  term  revolution  (revolvo,  to  roll  or  turn  over,)  was 
used  originally  to  signify,  in  a  political  sense,  an  uprising  of  am 
bitious  or  discontented  subjects,  with  a  view  to  subvert  the  exist 
ing  social  order.  From  this  has  been  derived  the  meaning,  most 
common  nowadays,  with  which  I  use  the  term,  namely,  to 
denote  a  political  act  or  acts  done  in  violation  of  law,  or  with 
out  law.  The  act  must  be  a  political  one,  since  it  would  be  an 
abuse  of  the  term  "  revolution  "  to  apply  it  to  ordinary  misde 
meanors  or  felonies,  which,  though  infractions  of  the  municipal 
law,  have  neither  in  intent  nor  effect  a  political  bearing.  A 
political  act  is  one  done  either  in  the  exercise  or  in  derogation  or 
subversion  of  political  rights,  as  defined  and  guaranteed  by  the 
government  established.  Such  an  act,  to  be  revolutionary,  ac 
cordingly,  must  be  done  either,  first,  in  violation  of  law ;  that  is, 
of  the  Constitution,  or  of  the  customary  or  statute  law,  includ 
ing  in  the  term  law,  the  letter,  with  its  necessary  implications ; 
or,  secondly,  without  law  ;  by  which  is  meant,  that  the  act  must 
rest,  for  its  warrant,  on  abstract  considerations,  such  as  physical 
power,  necessity,  or  natural  equity,  and  not  upon  the  authority 
of  the  existing  social  order,  to  which  it  is  extrinsic  or  hostile. 

From  these  definitions  it  follows,  that  it  is  erroneous  to  im 
pute  to  all  revolutions,  what  are  unhappily  the  concomitants 
of  some,  bloodshed  and  violence.  Revolutions  are  of  various 
kinds :  —  ] 


REVOLUTION.  101 

First,  such  as  manifest  themselves  in  desolating  wars,  as  that 
of  the  Roses,  in  England,  or  that  which  has  just  deluged  our 
own  land  with  blood. 

Second,  such  as  run  their  course  without  bloodshed,  but  are 
attended  by  angry  collisions  of  parties,  threatening  an  outbreak 
of  violence. 

Third,  such  as  are  consummated  quietly,  without  a  breach  of 
the  peace,  or  even  excitement,  —  often  without  a  distinct  percep 
tion,  on  the  part  of  the  people,  of  their  occurrence. 

§  HO.  Of  each  of  the  kinds  of  revolution  enumerated,  the 
consequences  may  be  varied,  wholly  without  relation  to  the  ap 
parent  magnitude  of  the  forces  at  work  in  them.  They  may, 
indifferently,  result  in  great  and  permanent  changes  in  the  Con 
stitution  of  the  society  in  which  they  occur,  or  in  its  laws  or 
social  condition,  whether  pronounced  successful  or  not.  Or,  on 
the  other  hand,  though  they  may  seem  to  involve  colossal  forces 
and  to  be  producing  great  transformations,  the  resulting  changes 
may  be  slight  and  temporary. 

Strictly  speaking,  it  is  erroneous  to  distinguish  revolutions  as 
small  or  great.  It  is  the  want  of  legality  in  what  is  done  that 
constitutes  the  revolution  ;  and  when  a  thing  is  done  for  which 
there  is  no  law,  or  which  is  in  violation  of  law,  there  are  no  de 
grees  in  the  illegality,  —  one  thing  is  as  legal  as  another,  when 
both  are  illegal.  It  is  only  of  the  concomitants  or  effects  of 
revolutions  that  magnitude  can  be  predicated. 

§  111.  A  single  further  remark  is  necessary  to  explain  the  im 
port  of  the  term  revolution.  In  what  has  preceded,  revolution 
ary  acts  have  been  conceived  of  as  done,  not  by  the  government, 
but  by  persons  without  it,  though  subject  to  it.  But  the  term 
revolutionary  is  often  applicable  to  acts  done  by  the  function 
aries  of  a  state,  whilst  pursuing  its  enemies,  to  defeat  them  and 
to  preserve  the  state.  There  is  a  homely  maxim,  according  to 
which  it  is  proper  "  to  fight  the  devil  with  fire,"  which  applies 
well  to  counter-revolutionary  acts.  On  principle,  as  being  done 
without  law  or  against  law,  though  with  the  patriotic  purpose 
of  saving  that  for  which  all  laws  are  made,  such  acts  must 
nevertheless  be  classed  as  revolutionary.  The  moral  character 
to  be  affixed  to  them,  however,  is  to  be  determined  by  the  degree 
of  their  necessity.  So  far  as  they  are  necessary  to  save  the 
existing  order,  they  are  for  it  proper  weapons  of  defence,  and 


102  IMPORTANCE    OF   DEFINING   REVOLUTION. 

their  inherent  illegality  is  to  be  laid  to  the  account  of  those  who 
necessitated  their  use.  So  far,  on  the  other  hand,  as  they  are 
unnecessary,  they  are  to  be  stigmatized  not  only  as  illegal,  but 
as  morally  indefensible,  because  stepping  farther  outside  the 
circle  of  the  law  than  is  necessary  to  grasp  and  destroy  its 
enemy. 

§  112.  The  importance  of  defining  the  term  revolution,  and  of 
characterizing  as  revolutionary  whatever,  by  its  lack  of  legality, 
deserves  the  name,  arises  from  the  consideration,  that,  co-exten 
sive  with  the  domain  of  law,  is  that  of  precedents.  A  precedent 
has  been  defined  to  be  "  something  to  show  that,  because  a  thing 
has  been  done  before,  therefore  it  may  be  done  again."  l  Being 
always  relative  to  some  rule,  it  is  in  the  nature  of  a  practical 
construction  put  upon  it  by  the  public  authorities,  from  which  it 
is  fair  to  presume  they  will  not  depart  in  similar  cases.  Now, 
when,  in  treating  of  constitutional  or  political  questions,  it  has 
been  determined  that  an  act  or  thing  is  without  the  domain  of 
law,  having  no  relations  to  it  except  those  of  hostility,  that  is, 
is  revolutionary,  it  is  also  shown  to  be  beyond  the  domain  of 
precedents ;  it  is,  in  short,  incapable  of  being  drawn  into  prece 
dent.  In  this  respect  a  revolutionary  act  is  like  one  of  theft  or 
of  homicide.  While  it  is  impossible  to  call  either  of  the  latter 
legal,  it  cannot  be  denied  that  both  may,  under  some  circum 
stances,  be  necessary  and  justifiable,  as  to  preserve  life.  But 
such  cases  are  extreme  ones,  and  rest  on  their  own  circumstances. 
Because  a  man  yesterday  took  life  justifiably,  under  circum 
stances  specified,  it  does  not  follow  that  I  may  take  life  to-day, 
though  the  same  circumstances  may  exist,  as,  in  my  case,  from 
a  thousand  causes,  there  may  be  no  necessity  for  taking  life.  I 
may  be  stronger,  or  my  antagonist  weaker,  than  in  the  case  cited 
as  a  precedent,  and  the  particular  of  relative  strength  may  not 
have  been  adverted  to  in  that  precedent.  If,  judging  by  my  case 
alone,  it  is  absolutely  necessary  for  me  to  take  life,  I  am  justifi 
able  in  doing  so,  otherwise  not.  So,  with  every  act  that  can  be 
characterized  as  revolutionary.  If  it  be  done  at  all,  it  must  be 
because  the  doer  deems  it  absolutely  indispensable.  Moreover, 
it  must  be  done  at  the  doer's  risk.  If  it  result  successfully,  it 
so  far  lays  the  foundation  for  a  new  order  of  things.  If  it  fail, 

1  Judge  Joel  Parker,  in  the  Massachusetts  Convention  of  1853.  Debates 
Mass.  Conv.  1853,  Vol.  I.  p.  83. 


BUT   TWO   MODES   OP   CALLING   CONVENTIONS.  103 

he  who  did  it  is  liable  to  the  penalties  of  treason  under  the  old. 
But  —  and  this  is  the  important  point  —  in  no  event  can  such 
an  act  be  drawn  into  precedent,  because  not  done  in  pursuance 
of  any  accredited  rule  or  law,  of  which  it  can  be  regarded  as 
a  practical  construction. 

§  113.  A  single  remark  further  as  to  the  terms  illegitimate 
and  revolutionary.  These  terms  are,  to  a  certain  extent,  con 
vertible,  but  the  latter  is  of  a  wider  signification  than  the 
former.  Illegitimacy  refers  to  illegality  of  origin,  and  is  perti 
nent  rather  to  a  person  or  body  of  persons  than  to  an  act.  The 
term  revolutionary,  on  the  other  hand,  may  be  used  to  charac 
terize  indifferently  a  body  or  an  act,  and  involves  the  idea,  as 
we  have  seen,  of  illegality  in  general,  that  is,  of  either  a  want 
of  express  legal  warrant,  or  a  violation  of  positive  law. 

§  114.  To  revert  now  to  the  subjects  proposed  for  discussion 
in  this  chapter  :  — 

I.  What  is  the  proper  mode  of  initiating  a  Convention,  look 
ing  at  the  question  from  the  point  of  view  of  theoretical  prin 
ciples  ? 

There  are  but  two  modes  in  which  a  Convention  can  be  initia 
ted.  First,  it  may  be  done  through  the  intervention  of  unofficial 
persons ;  that  is,  by  persons  acting  as  private  citizens,  but  giv 
ing  expression,  perhaps,  to  a  general  desire;  or,  secondly,  by  the 
intervention  of  persons  belonging  to  some  branch  of  the  exist 
ing  government,  acting  in  their  official  capacity,  and  by  that 
government's  desire. 

1.  A  Convention  called  in  the  first  mode  would  obviously  be 
nothing  more  than  the  "  Spontaneous  Convention  "  or  public 
meeting  explained  in  the  first  chapter.  Lacking  official  charac 
ter  and  relations,  the  extent  to  which  such  a  body  would  express 
the  public  will,  would  be  simply  a  matter  of  conjecture.  As  no 
legal  provision  could  be  appealed  to  to  guide  it  in  determining 
whether  all  parts  of  the  political  body  were  proportionately  repre 
sented  in  it,  or  whether  they,  who  claimed  to  sit  as  delegates, 
were  entitled  to  do  so,  it  would  be  impossible  for  such  an  assem 
bly  to  vindicate  its  legal  character  or  its  exclusive  jurisdiction 
for  any  purpose  whatever.  And  yet,  regarded  as  a  collection  of 
persons  interested  in  effecting  constitutional  changes,  that  is, 
as  a  mere  public  meeting,  such  a  body  would  be  fltyoxioijs  to 
no  exception.  But  those  who  maintain  the  propriety  and  legal- 


104  BY   ACTION   OF  UNOFFICIAL   PERSONS. 

ity  of  that  mode  go  farther.  They  claim  for  a  Convention  thus 
assembled,  if  deputed  by  a  majority  of  the  adult  male  citizens 
of  the  State,  an  official  representative  character,  in  virtue  of 
which  its  action  is  to  some  extent  legally  binding  on  the  whole 
State. 

§  115.  How  this  may  be,  upon  judicial  authority,  will  be  the 
subject  of  future  examination.  Considered  upon  principle,  it  is 
sufficient  to  remark :  — 

First,  that,  if  the  proposition  announced  in  a  former  chapter, 
as  involved  in  the  definition  of  sovereignty,  be  a  sound  one,  that 
sovereignty  inheres,  in  no  sense,  and  to  no  degree,  in  the  citizen 
as  an  individual,  nor  in  any  number  of  citizens  as  individuals, 
but  in  the  society  considered  as  a  corporate  unit ;  then,  any  aggre 
gation  of  individuals,  not  exhibiting  a  warrant  from  the  sover 
eign,  through  some  one  of  its  recognized  ordinary  agents,  for  as 
sembling  and  acting  in  its  name,  is  a  mere  spontaneous  assem 
bly  or  caucus.  It  has  nothing  official  in  it,  and  can  bind  no  one 
by  its  proceedings.  If  it  affect  to  frame  a  law  or  a  Constitution, 
and  to  put  it  in  force,  its  action  is  revolutionary.  As  a  body,  it 
is  neither  the  sovereign  nor  any  body  sprung  from  it,  and  so 
known  to  the  law,  but  is  unknown  and  hostile  to  both.  It  is, 
therefore,  illegitimate. 

Secondly.  The  hypothesis  that  a  Convention,  called  by  unoffi 
cial  persons,  should  express  the  general  desire,  is  the  most  favor 
able  one  that  could  be  made  for  those  who  ascribe  legal  validity 
to  the  acts  of  such  a  spontaneous  assembly.  In  actual  experi 
ence,  insurmountable  difficulties  would  attend  the  authentic 
ascertainment  of  that  fact.  How  could  it  be  made  known, 
without  legal  direction  and  scrutiny,  who  participated  in  that 
expression,  or  whether  the  returns  were  correct  of  those  who 
opposed,  as  well  as  of  those  who  favored,  the  call  ?  Probably, 
as  a  fact,  few  meetings,  thus  originated,  would  represent  more 
than  a  clique.  To  those  interested  in  securing  the  objects  of 
the  Convention,  the  attendance  of  such  as  were  not,  would  be 
undesirable,  and  either  the  latter,  therefore,  would  receive  no 
notice  of  the  election  of  delegates,  or  the  result  of  it  would  be 
falsified.  Opposing  interests  would  have  each  its  primary  meet 
ing  and  its  delegates.  Where  all  was  loose  and  spontaneous, 
whose  duty,  sjiould  it  be  to  determine,  among  the  adverse  claim 
ants  to  whom  the  seats  in  the  Convention  should  be  awarded  ? 


BY  ACTION  OF  THE  GOVERNMENT.  105 

The  rejected  delegations  might  really  represent  the  majority. 
At  any  rate,  believing  themselves  to  do  so,  or  pushed  on  by  pas 
sion  to  pretend  it,  rival  Conventions,  each  announcing  itself  as 
"  the  people  in  their  sovereign  capacity,"  might  assemble,  and 
harass  the  State  by  conflicting  ordinances,  heralded  as  supreme 
laws  for  its  citizens.  In  all  this,  there  would  be,  at  bottom,  no 
legality,  because  done  without  law,  in  the  face  of  the  existing 
government.  One  of  the  most  important  ends  of  government, 
is  to  ascertain,  for  the  citizen,  who  are  the  magistrates,  and  what 
are  the  laws.  Under  its  aegis,  he  can  never  be  embarrassed  by 
two  sets  of  functionaries  asserting  validity  for  two  rival  sets  of 
laws  or  two  opposing  Constitutions.  Looking  at  those  whom 
he  knows  to  represent  the  sovereign,  the  officers  of  the  existing 
order,  he  can  rest  satisfied,  that  what  they  recognize  as  legal  is 
so,  and  what  they  denounce  as  illegal,  is  illegal.  The  mode  of 
calling  Conventions  now  in  question  would  render  this  impossible. 
No  citizen  could  know  either  the  magistrate,  the  Constitution  or 
the  laws  he  was  bound  to  obey.  A  Convention,  then,  called 
in  such  a  mode,  it  would  be  a  perversion  of  language  to  style 
legitimate.1 

§  116.  2.  The  other  mode  of  calling  Conventions  is  by  an 
authentic  act  of  the  sovereign  body  acting  through  some  branch 
of  the  existing  government  representing  it,  as  the  electors,  or  one 
of  the  three  departments  —  legislative,  executive,  and  judicial. 

The  propriety  of  this  mode  is  inferrible  from  considerations, 
already  presented,  of  the  embarrassments  resulting  from  any 
other  possible  mode.  But  it  is  easy  to  demonstrate  the  abso 
lute  impropriety  of  any  other  mode.  In  a  former  chapter, 
we  have  seen,  that  any  body  of  men  claiming  to  act  in  the 
name  of  the  sovereign,  in  the  discharge  of  any  political  func 
tion,  must  be  presumed  to  be  impostors  or  usurpers,  unless 
exhibiting  a  warrant  so  to  do  from  the  sovereign,  in  the 
shape  of  some  law  or  constitutional  provision.2  If  it  have 
no  official  character  whatever,  its  individual  members  are 
impostors.  If,  having  a  quasi-official  character  from  that  of 
its  individual  members,  as  belonging  to  the  system  of  agen 
cies  established  by  the  body  politic  and  constituting  the  gov 
ernment,  it  nevertheless  assume  a  function  not  intrusted  to 

1  See  Webster's  Works,  Vol.  VI.  pp.  224-229. 

2  See  §  25,  ante. 


106  BY   THE   ELECTORS. 

it,  —  its  members  are  usurpers.  The  philosophy  of  the  whole 
subject  may  be  summed  up  thus :  The  State  has  a  clear  right 
to  reproduce  itself,  as  an  animal  does,  at  its  own  will  and  by  its 
own  appropriate  organs.  Only  by  the  exercise  of  that  right  can 
its  reputed  offspring  or  successor  be  legitimate,  or,  what  is  of 
perhaps  equal  importance  to  the  citizen,  escape  the  reputation 
of  illegitimacy. 

§  117.  Conceding  that  the  principle  just  stated,  as  a  general 
one,  is  true,  it  remains  to  inquire  into  the  particulars  comprised 
in  the  term  mode ;  that  is,  to  determine  with  reference  to  all  the 
pertinent  categories,  how  a  Convention  ought  to  be  called  to  be 
at  once  legitimate  and  safe.  Taking  the  word  in  its  broadest 
sense,  there  must  be  included  in  the  mode  of  calling  a  Conven 
tion  a  description,  first,  of  the  agencies  through  which  the  call 
is  to  be  effected  ;  and,  secondly,  of  the  manner  in  which  it  is  to 
be  done.  These  will  be  considered  in  their  order. 

§  118.  1.  As  we  have  seen,  the  agency  through  which  a  Con 
vention  ought  to  be  called,  is  some  branch  of  the  existing  gov 
ernment,  that  is,  either  the  electors  or  one  of  the  three  ordinary 
departments  indicated.  To  select  out  of  these  that  one  which 
is  best  fitted  for  such  a  trust,  though  a  work  of  some  difficulty, 
is  one  which  can  be  done  with  considerable  exactitude. 

(a).  Should  it  be  committed  to  the  electors,  independently 
of  other  departments  of  the  government  ? 

The  electoral  body,  though  less  numerous  than  the  sovereign 
body  which  it  represents,  is  yet  so  organized  as  to  incapacitate 
it  for  assembling  or  acting  together.  It  has  no  ministers  through 
whom  either  its  functions  can  be  performed  or  its  will  in  relation 
to  them  be  ascertained.  If  charged  with  the  duty  of  deliberating 
upon  the  call  of  Conventions,  it  would  act  under  disadvantages 
precisely  the  same  as  would  attend  the  call  of  such  bodies  spon 
taneously  by  the  entire  people,  or  by  a  majority  of  the  adult 
male  citizens.  There  could  be  no  certitude  as  to  results.  To 
produce  that,  there  must  be  legal  provisions,  prescribing  time 
and  mode  of  passing  upon  the  question  of  calling  such  Conven 
tions.  With  such  a  guide,  however,  the  electors  would  not  act 
independently,  in  the  sense  intended,  but  in  subordination  to  the 
legislature. 

§  119.  (b).  Should  the  power  of  catling  Conventions  be  left 
to  the  judicial  department?  It  is  very  doubtful  whether  the 


THE   EXECUTIVE.  107 

judiciary  are  adapted  to  perform  this  function.  However  exten 
sive  the  State  may  be,  that  department  is  never,  in  point  of 
numbers,  large,  and  it  is  commonly  less  numerous  relatively  in 
large  than  in  small  communities.  It  is  intended,  moreover,  for 
a  definite  and  limited  function  —  that  of  expounding  and  apply 
ing  the  laws.  Whenever  the  judiciary  confines  itself  to  its 
proper  sphere  of  action,  which  is  to  determine  what  the  law  is, 
it  is,  by  that  circumstance,  unfitted  to  pronounce  what,  in  a 
complicated  maze  of  facts  constituting,  at  any  time,  the  actual 
situation,  the  law  ought  to  be.  It  is  therefore  observable  that 
great  judges,  like  Mansfield,  often  fail  as  legislators.  By  train 
ing  and  habits  of  mind  they  are  retrospective,  and  distinguish 
themselves  more  often  by  obstinate  conservatism  than  by  those 
broad  practical  views,  "  looking  before  and  after,"  which  consti 
tute  statesmanship.  Such  idiosyncracies  disqualify  those  who 
possess  them  for  the  leadership  in  reformatory  movements,  and 
often  blind  them  to  their  necessity.  Being,  moreover,  a  body 
small  in  numbers,  and,  for  that  reason,  not  likely  adequately  to 
represent  the  prevalent  wishes  or  opinions  of  the  people,  the 
judicial  body  ought  not  to  wield  the  power  of  calling  or  re 
fusing  to  call  Conventions  by  which  propositions  of  reform  are 
to  be  digested. 

§  120.  (c).  Somewhat  similar  objections  exist  to  the  execu 
tive  as  a  depositary  of  the  power  in  question.  That  depart 
ment  consists  of  a  single  individual,  noted,  often,  rather  for 
political  tact  than  for  wisdom  or  statesmanship.  But,  if  it  were 
conceded  that  our  governors  were  always  what,  happily,  they 
very  generally  are,  wise  men  and  statesmen,  and  if  they  could 
be  presumed  fairly  to  represent  the  nation  in  reference  to  ques 
tions  of  reform,  grave  objection  would  still  exist  against  lodging 
the  power  I  am  considering  in  their  hands.  In  our  system  of 
popular  government,  it  is  the  executive  in  whom  has  been  dis 
covered  the  greatest  centrifugal  tendency,  and  who  is,  therefore, 
most  likely  to  break  through  the  restraints  of  law.  If  our  sys 
tem  ever  perish,  it  will  probably  do  so,  not  from  legislative  or 
judicial,  but  from  executive,  usurpation.  And  though  this  re 
mark  seems  applicable  rather  to  the  Federal  executive  than  to 
those  of  the  States,  it  is  pertinent,  also,  to  the  latter.  Within 
the  sphere  of  the  States,  executive  usurpation  is  quite  as  likely 
to  arise  on  the  part  of  their  governors  as  in  the  wider  sphere  of 


108  THE   LEGISLATURE. 

the  nation  on  the  part  of  the  President.  Which  of  the  two  it 
is  from  whom  most  danger  is  to  be  apprehended,  need  not 
now  be  determined.  Until  the  late  war,  the  executive  authority 
in  the  States  seemed  most  to  threaten  our  integrity.  Perhaps, 
now,  the  danger  may  be  reversed.  But  this  is  clear :  a  power 
from  which  usurpation  and  overthrow  may  be  apprehended,  is 
not  the  power  to  be  invested  with  the  high  sovereign  function 
of  summoning  and  commissioning  the  body  by  whom  constitu 
tional  changes  are  to  be  initiated  or  made. 

§  121.  (d).  The  alternative,  therefore,  as  our  governments 
are  constituted,  is,  that  the  function  of  calling  Conventions  shall 
be  committed  to  the  legislature,  under  such  restrictions  as  the 
sovereign  body  shall  prescribe,  or  as  shall  accord  with  the  max 
ims  of  political  prudence. 

The  legislature  is  the  fittest  body  to  act  upon  the  question 
of  calling  a  Convention,  because,  of  all  questions,  that  is  most 
dependent,  for  a  proper  decision,  on  a  wise  balancing  of  expe 
diencies.  If  the  question  of  making  or  not  making  constitu 
tional  changes  were  one  of  abstract  principles,  the  opinion  of  a 
single  publicist  might  outweigh  that  of  the  nation.  But  such 
is  not  the  case ;  it  is  a  mixed  question  of  principles  and  of  facts, 
and  the  task  of  those  who  frame  Constitutions  is,  to  cause  the 
two,  however  repugnant  they  may  be,  as  far  as  possible  to  har 
monize  in  the  system  established.  To  accomplish  this,  the  prin 
ciples  underlying  all  government,  and  particularly  that  to  be 
reformed,  as  well  as  the  circumstances,  interests,  prepossessions, 
and  aversions  of  the  people,  are  to  be  weighed  and  allowed  for. 
A  government  built  up  on  any  other  plan  would  be  a  machine 
constructed  on  the  hypothesis  that  there  were  no  such  forces  as 
inertia  and  gravity,  and  no  such  drawback  as  friction.  In  this 
respect,  the  legislature  is,  of  all  public  bodies,  that  which  is  best 
adapted  to  this  particular  work.  It  is  its  prime  function  to  de 
termine  the  expedient.  Besides,  of  all  representative  bodies, 
excepting  only  the  electors,  it  is,  under  all  forms  of  government, 
the  most  numerous.  In  the  United  States  it  is  more  so  than 
elsewhere.  The  United  Kingdom  of  Great  Britain  and  Ireland, 
with  a  population  of  about  thirty  millions,  is  represented  in 
Parliament  by  about  eleven  hundred  members,  including  both 
Lords  and  Commons.  The  United  States,  with  a  population 
of  thirty-four  millions,  has,  in  the  National  and  State  govern- 


MANNER   OF   CALLING    CONVENTIONS.  109 

ments,  whose  combined  jurisdictions  correspond  to  that  of  the 
Parliament  in  England,  five  thousand  two  hundred  and  fifty 
representatives.  In  this  number  I  do  not  reckon  the  city, 
town,  and  county  boards  for  local  self-government,  which,  in 
the  two  countries,  may  be  considered  as  offsetting  each  other. 
These  representatives  are,  moreover,  subject  to  frequent  elec 
tions.  No  change  of  opinion  can  be  permanent  or  wide 
spread,  without  soon  making  itself  felt  and  respected  in  the 
legislative  body.  Practically,  the  interests  of  our  common 
wealths,  therefore,  are  nearly  as  safe  in  the  hands  of  our  legis 
latures  as  in  those  of  the  electors,  whom  we  ordinarily  desig 
nate  by  the  term  people ;  the  difference  being  only  that  a  less 
numerous  body  is  proportionately  more  accessible  to  corrupting 
influences. 

§  122.  2.  The  question  next  in  order  is,  in  what  manner  shall 
a  legislature  call  a  Convention?  The  general  answer  is,  by 
some  legislative  act.  As  the  objects  of  intrusting  the  call  to 
that  body  are,  first,  to  insure  the  assembling  of  a  Convention 
whenever,  within  constitutional  or  reasonable  limits,  public  opin 
ion  should  have  settled  upon  its  necessity,  and,  secondly,  to 
throw  around  the  body,  coming  comet-like  into  the  system,  all 
the  legal  restraints  of  which  it  is  susceptible,  some  act  of  legis 
lation  would  be  requisite  to  accomplish  either  object.  A  simple 
resolution  or  vote,  would  commonly  give  expression  to  the  general 
desire,  but  were  that  all,  there  would  be  danger  that  party  spirit 
might  avail  itself  of  majorities  to  call  Conventions  for  partisan 
purposes.  This  danger  being  far  from  unreal,  doubtless  the  wiser 
course  would  be  for  the  legislature  so  to  act  as  to  forestall  it. 
A  check  ought  to  be  found  by  which  the  probability  of  its  occur 
rence  would  be  reduced  to  a  minimum.  An  expedient  has  been 
adopted  in  many  States,  as  we  shall  see  more  fully  in  a  subse 
quent  chapter,  by  which  this  is  effected.  It  has  been  provided, 
in  their  Constitutions  that,  whenever,  in  the  opinion  of  the  legis 
lature,  a  Convention  is  desirable  to  revise  the  fundamental  law, 
that  body  shall  so  declare,  by  vote  or  resolution  ;  that  thereupon, 
after  a  prescribed  notice  by  publication,  the  sense  of  the  people 
shall  be  taken  on  the  question  of  calling  a  Convention;  and 
that  the  legislature  shall  thereupon  call  one,  or  not,  according 
to  the  result  of  the  popular  vote.  This  mode  was  much  com 
mended,  in  1820,  by  the  eminent  persons  then  composing  the 


110  MANNER   OP   CALLING   CONVENTIONS. 

New  York  Council  of  Revision,1  by  whom  it  was  declared  to  be 
most  consonant  to  the  principles  of  our  government  and  to  the 
practice  in  other  States,  and  they  accordingly  vetoed  a  bill  for 
an  act  to  call  a  Convention  to  assemble  in  the  following  year, 
on  the  ground  that  it  did  not  propose  to  submit  the  question  to 
the  people.  There  can  be  no  doubt,  that  this  decision  was  a 
sound  one,  on  constitutional  principles.  The  intervention  of 
the  legislature  is  necessary  to  give  a  legal  starting-point  to  a 
Convention,  and  to  hedge  it  about  by  such  restraints  as  shall 
ensure  obedience  to  the  law ;  but  as  a  Convention  ought  to  be 
called  only  when  demanded  by  the  public  necessities,  and  then 
to  be  as  nearly  as  possible  the  act  of  the  sovereign  body  itself, 
it  would  seem  proper  to  leave  the  matter  to  the  decision  of  the 
electoral  body,  which  stands  nearest  to  the  sovereign,  and  best 
represents  its  opinion.  Such  seems  to  be  the  prevailing  senti 
ment  in  most  of  the  States  which  have  revised  their  Constitu 
tions  since  the  date  of  the  decision  referred  to. 

§  123.  There  may,  then,  be  two  cases  :  first,  when  the  legis 
lature  itself  passes  upon  the  question  of  calling  a  Convention, 
without  the  intervention  of  the  electoral  body ;  and,  secondly, 
where  the  legislature  first  recommends  a  call,  then  refers  the 
question  to  a  vote  of  the  electors,  and,  finally,  on  an  affirmative 
vote  by  the  latter,  issues  the  call. 

In  the  first  case,  the  act  of  the  legislature  calling  the  Conven 
tion  is  an  act  of  legislation,  strictly  so  called.  It  prescribes  a 
rule  of  action  for  the  electors,  fixing  the  time,  place,  and  manner 
of  the  election  to  be  held  by  them,  and  commonly  provides  pen 
alties  for  misconduct  either  in  the  officers  conducting  the  elec 
tion  or  making  the  returns  thereof,  or  in  the  electors  voting 
thereat.  Such  a  rule  of  action  is  a  law.2  In  the  second  case, 
so  much  of  the  original  act  of  the  legislature  as  merely  recom 
mends  a  Convention,  cannot  be  said  to  be  a  law.  It  is,  rather, 
an  expression  of  opinion,  intended  to  preface  a  reference  of  the 
question  to  the  people,  by  whom  it  is  to  be  decided.  The  sub 
sequent  act,  or  other  sections  of  the  same  act,  however,  by  which 
a  legislature  refers  the  question  to  the  people,  must  be  conceded 
to  be  a  law,  since  it  has  always  the  force  as  well  as  the  form 

1  Kent  and  Spencer,  Justices,  and  Governor  Clinton.     For  the  whole  opinion 
of  the  Council,  see  Appendix,  B,  post. 

2  1  Blackstone's  Commentaries,  44. 


CONVENTIONS  OF  THE  REVOLUTIONARY  PERIOD.      Ill 

of  a  law,  being  in    all  particulars  similar  to  that  by  which  it 
finally  calls  the  Convention,  if  ordered  by  the  people.1 

§  124.  Before  closing  the  discussion  of  the  principles  regu 
lating  the  legitimate  call  of  Constitutional  Conventions,  one 
remark  is  necessary  to  guard  against  misconstruction.  A  Con 
stitution,  or  an  amendment  to  a  Constitution,  originating  in 
a  Convention  justly  stigmatized  as  illegitimate,  may,  notwith 
standing  its  origin,  become  valid  as  a  fundamental  law.  This 
may  happen  in  two  ways:  namely,  first,  by  its  adoption  by 
the  electoral  body,  according  to  the  forms  of  existing  laws ;  or, 
secondly,  by  the  mere  acquiescence  of  the  sovereign  society. 
Such  a  ratification  of  the  supposed  Constitution  or  amendment 
would  not,  however,  legitimate  the  body  from  whom  the  Consti 
tution  or  amendment  proceeded.  That  no  power  human  or  divine 
could  do,  because,  by  the  hypothesis,  such  body  was  in  its  origin 
illegitimate,  that  is,  as  shown  in  previous  sections,  convened  either 
against  law  or  without  law,  which  in  a  government  of  laws,  are 
one  and  the  same  thing.  The  ratification  by  the  acquiescence  of 
the  sovereign,  would  be  a  direct  exercise  of  sovereign  power,  ille 
gal  doubtless,  but  yet  standing  out  prominently  as  a  fact,  and  as 
such  finding  in  the  original  overwhelming  power  of  the  sover 
eign,  a  practical  justification,  which  it  would  be  folly  to  gainsay.2 

§  125.  Let  us  now  see  to  what  extent  the  practice,  under  the 
political  system  of  the  United  States,  has  conformed  to  the 
theoretical  principles  thus  developed. 

The  Constitutional  Conventions  thus  far  held  —  by  those 
terms  designating,  for  the  purposes  of  this  chapter,  all  such 
bodies,  legitimate  and  illegitimate,  as  have  framed  Constitutions 
or  parts  of  Constitutions,  either  for  the  United  States  or  for 
States  members  of  the  Union  —  may  be  divided,  primarily,  with 
reference  partly  to  convenience  and  partly  to  their  most  general 
characteristics,  into  two  great  classes  : 3 

(o).  The  first  class  comprises  such  Conventions  as  were  held 
during  the  Revolutionary  period,  extending  from  1776  down  to 
the  establishment  of  the  Federal  Constitution  in  1789. 

(b).  The  second  class  comprises  the  Conventions  of  the  post- 

1  For  a  more  full  discussion  of  the  distinctions  here  indicated,  which  are  not 
without  important  practical  bearings,  see  ch.  viii.,  post. 

2  See  §  23,  ante. 

3  For  a  complete  list  of  these  bodies,  with  the  dates  of  their  assembling  and 
adjournment,  so  far  as  can  be  ascertained,  see  Appendix,  A.,  post. 


112  CONVENTIONS   OF   THE   REVOLUTIONARY   PERIOD. 

Revolutionary  period  —  that  is,  such  as  have  been  held  since  the 
4th  of  March,  1789. 

These  two  classes  will  now  be  considered  at  length,  and  in 
their  order. 

§  126.  (a).  To  understand,  and  therefore  properly  to  character 
ize,  the  Conventions  embraced  in  the  first  class,  it  will  be  neces 
sary  to  look  into  the  history  of  the  times  in  which  they  were 
convened,  and  to  elucidate  the  general  causes  and  the  particular 
acts  bv  which  their  legal  character  was  determined. 

When  the  colonies  entered  upon  that  course  of  opposition  to 
the  crown  which  ripened  into  the  Revolution,  it  was  neither  their 
intention  nor  their  desire  to  effect  a  separation  from  Great  Brit 
ain.  To  bring  them  to  favor  such  a  measure,  there  were  neces 
sary  the  thirteen  following  years  of  agitation,  crowded  with 
distress  and  humiliation  on  the  part  of  the  colonists,  and  with 
contemptuous  denials  of  redress  and  contumelious  reproaches 
on  that  of  the  imperial  authorities.  As  the  contest  thickened, 
however,  and  blood  began  to  flow,  the  colonial  establishments 
one  by  one  succumbed  or  were  suppressed,  the  royal  governors 
fleeing  from  their  enraged  subjects,  or  being  arrested  by  them 
and  thrown  into  prison.  To  maintain  order  and  tranquillity, 
while  the  contest  with  the  mother  country  should  continue,  it 
became  necessary,  therefore,  to  establish  new  political  organiza 
tions  in  the  several  colonies.  But,  because  the  necessity  for 
them  was  thought  to  be  temporary,  the  arrangement  at  first 
made  was  merely  provisional.  The  organizations  provided  were 
of  the  simplest  character,  consisting  of  Provincial  Conventions  or 
Congresses,  modelled  on  the  same  plan  as  the  general  Congress  at 
Philadelphia,  comprising  a  single  chamber,  in  which  was  vested 
all  the  powers  of  government.  These  bodies,  found  in  all  the 
colonies,  save  Connecticut  and  Rhode  Island,  whose  Assemblies, 
fairly  chosen  by  the  people,  it  was  not  found  necessary  to  super 
sede,  were  made  up  of  deputies  elected  by  the  constituencies 
established  under  the  crown,  or  appointed  by  meetings  of  the 
principal  citizens  or  by  the  municipal  authorities  of  the  chief 
towns  and  cities.  All  legislative  authority  was  exercised  by 
those  bodies  directly.  Their  executive  functions  were  intrusted 
to  Committees  of  Correspondence,  of  Public  Safety,  and  the  like, 
appointed  by  themselves,  and  during  the  sittings  of  the  Conven 
tions  or  Congresses,  were  discharged  under  their  own  supervision. 


FORMATION   OF   REGULAR  GOVERNMENTS.  113 

In  the  interims  between  their  sessions,  however,  the  powers  of 
those  committees  were  substantially  absolute. 

§  127.  Under  organizations  thus  loose  and  unrestricted,  gov 
ernment  was  carried  on  in  the  colonies  for  many  months,  and 
that  without  protest  or  discontent,  so  long  as  the  general  expec 
tation  of  a  return  to  allegiance,  following  upon  a  redress  of 
grievances,  continued  to  exist.  As  time  advanced,  however,  and 
it  became  evident,  on  the  one  hand,  that  the  mother  country 
would  not  purchase  the  submission  of  her  revolted  subjects  by 
compromise  or  even  by  conciliation,  and,  on  the  other,  that  the 
work  of  subduing  them,  if  possible  at  all,  could  be  accomplished 
only  by  a  long  and  bloody  contest,  there  arose  a  general  desire 
for  the  establishment  of  more  regular  governments  than  those 
by  Congresses  and  committees.1  Thus,  in  May,  1775,  the  Pro 
vincial  Convention  of  Massachusetts,  charged  with  the  govern 
ment  of  the  colony,  applied  to  the  Congress  at  Philadelphia  for 
explicit  advice  respecting  the  proper  exercise  of  the  powers  of 
government.  In  reply,  after  declaring  that  no  obedience  was 
due  to  the  act  of  Parliament  lately  passed  for  altering  her  char 
ter,  that  body  recommended  that  the  Convention  should  write 
letters  to  the  several  towns  entitled  to  representation  in  the 
Assembly,  requesting  them  to  choose  representatives  to.  form 
an  Assembly,  and  to  instruct  the  latter,  when  convened,  to  elect 
counsellors  ;  adding  their  wish,  that  the  bodies  thus  formed 
should  exercise  the  powers  of  government  until  a  governor  of 
the  king's  appointment  would  consent  to  govern  the  colony 

1  This  is  apparent  from  the  preamble  to  the  resolutions  of  the  New  York 
Congress  on  the  subject  of  forming  for  that  State  its  first  Constitution.  It  runs 
as  follows :  — 

"  Whereas,  the  present  government  of  this  colony,  by  Congress  and  commit 
tees,  was  instituted  while  the  former  government,  under  the  Crown  of  Great 
Britain,  existed  in  full  force ;  and  was  established  for  the  sole  purpose  of  oppos 
ing  the  usurpation  of  the  British  Parliament,  and  was  intended  to  expire  on  a 
reconciliation  with  Great  Britain,  which  it  was  then  apprehended  would  soon 
take  place,  but  is  now  considered  as  remote  and  uncertain.  And  whereas, 
many  and  great  inconveniences  attend  the  said  mode  of  government  by  Con 
gress  and  committees,  as  of  necessity,  in  many  instances,  legislative,  judicial, 
and  executive  powers  have  been  vested  therein,  especially  since  the  dissolution 
of  the  former  government  by  the  abdication  of  the  late  governor,  and  the  ex 
clusion  of  this  colony  from  the  protection  of  the  King  of  Great  Britain."  .... 
See  New  York  Constitution  of  1777,  in  the  preamble  to  which  these  resolu 
tions  are  embodied, 

8 


114  ADVICE  OF  JOHN  ADAMS. 

according  to  its  charter.1  This  answer  was  made  in  June,  1775, 
and  the  advice  given  was  followed,  and  the  government  thus 
constituted  was  the  only  one  Massachusetts  had  until  the  estab 
lishment  of  her  first  Constitution  in  1780.  In  October,  1775,  the 
delegates  to  the  Continental  Congress  from  New  Hampshire 
laid  before  that  body  instructions,  received  by  them  from  the 
New  Hampshire  Convention,  to  obtain  the  advice  and  direction 
of  Congress  in  relation  to  the  establishment  of  civil  government 
in  that  colony.  Similar  requests  were,  about  the  same  time, 
sent  up  from  the  Provincial  Conventions  of  Virginia  and  South 
Carolina.  At  length,  on  the  3d  and  4th  of  November,  1775, 
Congress  agreed  upon  a  reply  to  these  applications,  in  which 
those  bodies  were  advised  "  to  call  a  full  and  free  representation 
of  the  people,  in  order  to  form  such  a  form  of  government  as,  in 
their  judgment,  would  best  promote  the  happiness  of  the  peo 
ple,  and  most  effectually  secure  peace  and  good  order  in  their 
provinces  during  the  continuance  of  the  dispute  with  Great 
Britain."2 

§  128.  These  important  recommendations  were  extorted  from 
Congress  by  the  importunity  of  colonies  whose  situation  was 
critical,  that  body  being  reluctant  to  inaugurate  a  general  recon 
struction  of  government  upon  a  permanent  basis,  so  long  as 
there  was  a  possibility  of  an  accommodation  with  Great  Brit 
ain.  Accordingly,  as  we  see,  the  most  that  could  be  wrung  from 
it  was  a  recommendation  to  establish  temporary  governments, 
without  any  specification  as  to  the  form  they  should  assume,  or 
the  distribution  of  their  powers.  But  in  this,  Congress  lingered 
far  behind  some  of  its  leading  members.  Ever  since  the  previ 
ous  May,  John  Adams  had  exerted  all  his  eloquence  to  induce 
Congress  to  lead  off  in  the  work  of  founding  permanent  organ 
izations  in  the  States  independent  of  Great  Britain.  In  his 
own  language,  he  urged  "  the  necessity  of  realizing  the  theories 
of  the  wisest  writers,  and  of  inviting  the  people  to  erect  the 
whole  building  with  their  own  hands,  upon  the  broadest  founda 
tion."  He  declared  "  that  this  could  be  done  only  by  Conven 
tions  of  representatives,  chosen  by  the  people  in  the  several 
colonies,  in  the  most  exact  proportions  ....  and  that  Congress 
ought  now  to  recommend  to  the  people  of  every  colony  to  call 

1  Curtis'  Hist.  Const.  U.  S.,  Vol.  I.  pp.  36,  37. 

2  Jour.  Cont.  Cong.,  Vol.  I.  p.  219. 


RESOLUTION   OF   CONGRESS.  115 

such  Conventions  immediately,  and  set  up  governments  of  their 
own  authority."  1 

At  length,  one  after  another  of  the  Provincial  Conventions  sig 
nifying  the  readiness  of  the  people  to  support  a  declaration  of 
independence  of  Great  Britain,  and  it  becoming  apparent  to 
the  least  far-sighted  that  such  a  measure  could  not  long  be  de 
layed,  as  a  preparation  for  it,  or  rather  as  the  first  and  not  the 
least  important  step  in  its  consummation,  definite  action  was 
taken  on  the  subject  of  permanent  governments  in  the  States.  On 
the  10th  of  May,  1776,  Congress  adopted  the  decisive  resolution, 
and  on  the  15th  prefixed  to  it  the  preamble,  which  follow  :  — 

"  Whereas,  his  Britannic  Majesty,  in  conjunction  with  the  Lords 
and  Commons  of  Great  Britain,  has,  by  a  late  act  of  Parliament, 
excluded  the  inhabitants  of  these  united  colonies  from  the  pro 
tection  of  his  crown  ;  and,  whereas,  no  answer  whatever  to  the 
humble  petitions  of  the  colonies  for  redress  of  grievances  and 
reconciliation  with  Great  Britain  has  been  or  is  likely  to  be 
given ;  but  the  whole  force  of  that  kingdom,  aided  by  foreign 
mercenaries,  is  to  be  exercised  for  the  destruction  of  the  good 
people  of  these  colonies;  and,  whereas,  it  appears  absolutely 
irreconcilable  to  reason  and  good  conscience,  for  the  people  of 
these  colonies  now  to  take  the  oaths  and  affirmations  necessary 
for  the  support  of  any  government  under  the  crown  of  Great 
Britain,  and  it  is  necessary  that  the  exercise  of  every  kind  of 
authority  under  the  said  crown  should  be  totally  suppressed,  and 
all  the  powers  of  government  exerted,  under  the  authority  of 
the  people  of  the  colonies,  for  the  preservation  of  internal  peace, 
virtue,  and  good  order,  as  well  as  for  the  defence  of  their  lives, 
liberties,  and  properties,  against  the  hostile  invasions  and  cruel 
depredations  of  their  enemies,  therefore,  — 

"  Resolved,  That  it  be  recommended  to  the  several  Assemblies 
and  Conventions  of  the  united  colonies,  where  no  government, 
sufficient  to  the  exigencies  of  their  affairs,  hath  been  hitherto 
established,  to  adopt  such  government  as  shall,  in  the  opinion 
of  the  representatives  of  the  people,  best  conduce  to  the  happi 
ness  and  safety  of  their  constituents  in  particular,  and  America 
in  general."  2 

§  129.  This  resolution  was  the  turning-point  in  the  Kevolu- 

1  Works  ofJ.  Adams,  Vol.  III.  pp.  13-16. 

2  Journal  of  Continental  Congress,  Vol.  II.  pp.  158,  166. 


116  PURPORT   OF   THE   RESOLUTION. 

tion,  since  it  foreshadowed  and  necessitated  that  of  July  4th, 
1776,  declaring  the  independence  of  the  colonies.  So  well  was 
this  understood,  that,  in  the  debate  upon  it  those  delegates  who 
opposed  its  passage  did  so  on  the  ground  that  it  was  the  first 
step,  to  which,  if  taken,  independence  must  succeed.  Mr.  Duane 
stigmatized  the  resolution,  to  Mr.  Adams,  as  "  a  machine  for 
the  fabrication  of  independence  ; "  to  which  the  latter,  char 
acterizing  it  with'  still  greater  accuracy,  truthfully  replied,  that 
"  it  was  independence  itself."  l 

The  intention  of  Congress  in  passing  this  resolution  prob 
ably  was,  to  recommend  that  the  work  of  erecting  govern 
ments  in  the  several  colonies  should  be  undertaken  by  the 
legislative  authorities  thereof;  that  is,  by  the  Assemblies,  in 
such  colonies  as  possessed  them,  and  by  the  Conventions  or 
Congresses  in  such  as  had  no  Assemblies.  If  this  be  so,  the 
measure  came  far  short  of  the  wise  recommendations  of  Mr. 
Adams,  as  well  as  of  the  requirements  of  principle.  What 
should  have  been  done  was,  to  propose  the  calling  of  Conven 
tions  for  the  specific  and  only  purpose  of  framing  Constitu 
tions  for  the  colonies,  —  the  calls  for  them  to  issue  from  the 
legislative  departments  of  the  existing  establishments,  whatever 
those  establishments  might  be.  It  is  true,  on  examining  the 
language  of  the  resolution  another  construction  suggests  itself 
as  the  one  possibly  intended  by  Congress,  namely,  one  which 
should  require  the  calling  in  each  State,  of  a  body  of  represent 
atives  of  the  people,  to  frame  and  propose  a  Constitution,  to  be 
afterwards  submitted  to  and  adopted  by  the  Assembly  or  Con 
vention  calling  it.  The  phraseology  is :  "  That  it  be  recom 
mended  to  the  several  Assemblies  and  Conventions  of  the  united 
colonies  ...  to  adopt  such  government  as  shall,  in  the  opinion 
of  the  representatives  of  the  people,  best  conduce"  &c.  Had 
"  the  representatives  of  the  people,"  intended  by  Congress,  been 
those  constituting  "  the  several  Assemblies  and  Conventions,"  it 
might  seem  more  natural,  after  referring  to  the  latter,  to  use  the 
terms,  "  to  adopt  such  government  as  shall  in  their  opinion  best 
conduce,"  &c.  But  such  a  construction  is,  I  think,  strained.  It 
certainly,  as  will  be  found  hereafter,  was  not  the  one  adopted  in 
the  contemporary  expositions  made  of  the  resolution  in  the 
several  States.  Assuming  that  the  true  construction  devolved 
l  Works  ofJ.  Adams,  Vol.  III.  p.  46. 


CONDITIONS   OF   THE   PROBLEM.  117 

upon  the  "Assemblies  and  Conventions  "  the  whole  duty  of  fram 
ing  and  putting  in  operation  Constitutions  for  their  respective 
colonies,  the  resolution  was  less  conformable  to  principle  than 
that  of  the  November  preceding,  containing  advice  to  the  con 
ventions  of  New  Hampshire  and  South  Carolina.  The  latter 
recommended  to  those  bodies  "  to  call  a  full  and  free  representa 
tion  of  the  people,  in  order  to  form  such  a  government  as  in 
their  judgment  would  best  promote,"  &c.  It  is  fair  to  remark, 
however,  that  the  science  of  Constitution-making  was  then  in 
its  infancy.  Our  fathers  had  not  yet,  from  actual  administra 
tion,  learned  the  dangers  that  attend  fundamental  legislation, 
nor  discovered  the  safeguards  against  them  which  experience 
alone  can  reveal.  Even  what  seem  now  to  be  steps  taken  with 
a  view  to  conformity  to  principle,  and,  therefore,  to  be  strictly 
regular,  were  not  unfrequently  the  results  of  chance  or  of  con 
siderations  of  temporary  convenience,  and  so,  deserving  of  little 
weight  as  indicating  the  degree  of  knowledge  existing  on  the 
subject  among  the  statesmen  of  the  day. 

§  130.  Upon  these  recommendations,  special  or  general,  the 
several  colonies  embraced  in  the  first  class  acted,  in  framing 
their  earliest  Constitutions. 

Before  proceeding  to  describe  the  separate  action  of  each 
colony,  with  a  view  to  determine  whether  or  not,  and  how  far, 
that  action  was  conformable  to  principles  or  otherwise,  it  will  be 
useful  to  state  as  concisely  as  may  be,  first,  the  conditions  of  the 
problem  our  fathers  were  required  to  solve  in  establishing  perma 
nent  republican  institutions  in  place  of  the  make-shifts  which 
sprung  up  with  the  Revolution  ;  and,  secondly,  the  elements  pre 
sented  by  the  actual  historical  situation,  for  its  solution. 

1.  The  conditions  of  the  problem  were  simple.  The  political 
society,  known,  since  the  Declaration  of  Independence,  as  u  the 
United  States  of  America,"  was  called  upon  to  erect  for  itself  an 
independent  government,  suitable  to  its  needs.  This  important 
work  must  be  done,  so  far  as  possible,  regularly  and  peacefully, 
and,  therefore,  with  the  approval  and  through  the  ministry  of  the 
political  organizations,  or  fragments  of  political  organizations, 
then  existing,  however  imperfect  they  might  be,  and  whatever 
might  have  been  their  origin.  Of  these  several  organizations, 
wherever  there  was  a  subdivision  into  legislative,  executive,  and 
judicial  departments,  use  must  be  made,  to  initiate  the  work, 


118  ELEMENTS    OF   THE   PROBLEM. 

of  the  legislative  department,  as  by  its  character  and  functions 
alone  fitted  to  undertake  it  safely  or  successfully.  Finally,  no 
action  of  any  department  of  the  existing  organization  was,  unless 
absolutely  necessary,  to  be  taken  as  definitive,  but  the  people,  or 
electoral  body,  in  which  the  powers  of  sovereignty  were  prac 
tically  lodged,  must  be  appealed  to  to  pronounce  the  fiat  by 
which  the  proposition  of  the  legislature  or  Convention  was  to  be 
ripened  into  law.  Such  were  the  conditions  of  the  problem. 

2.  The  elements  given  for  its  solution  were  hardly  more  com 
plex.  There  were  the  indeterminate  provisional  organizations 
by  which  whatever  of  government  the  several  colonies  possessed 
was  conducted,  being  in  most  of  them  the  irregular  and  revolu 
tionary  Conventions  or  Congresses,  and  in  a  few  the  still  subsist 
ing  Assemblies,  established  under  the  crown,  to  which  reference 
has  been  made.  There  was  then  the  equally  indeterminate  gov 
ernment  of  the  Union,  whose  powers  were  lodged  in  the  single 
chamber  known  as  the  Continental  Congress;  a  body  in  every 
respect  conforming  to  our  definition  of  a  Revolutionary  Con 
vention.  To  these  organizations,  local  and  general,  must  be 
added  those  which,  during  the  revolutionary  period,  were  in  a 
few  cases  constructed  to  succeed  them.  And,  lastly,  there  was 
the  people  of  the  United  States,  considered,  first,  as  the  political 
unit,  by  which  independence  was  declared,  and,  secondly,  as  the 
subordinate  groups  constituting  the  States  either  as  peoples  or 
as  political  organizations.  Amongst  these  three  orders  of  polit 
ical  entities,  in  a  manner  explained  in  the  second  chapter,  was 
distributed  the  exercise  of  sovereign  powers,  on  the  breaking 
out  of  the  Revolution,  and,  therefore,  by  them,  in  their  several 
spheres  and  in  a  mode  conformable  to  their  respective  powers  in 
the  general  system,  was  the  work  in  question  to  be  effected. 

§  131.  The  first  colony  to  act  upon  the  recommendations  of 
Congress  was  New  Hampshire.  In  less  than  a  fortnight  after 
the  passage  by  Congress  of  the  resolutions  of  November  3d, 
1775,  the  Provincial  Convention  of  that  colony  took  into  consid 
eration  the  mode  in  which  "  a  full  and  free  representation  "  for 
the  purpose  indicated  by  Congress  should  be  constituted.1  It 
was  finally  determined  that  it  should  take  the  form  of  a  new 
Convention,  to  be  summoned  by  the  Provincial  Convention,  and 
that  for  the  purpose  of  apportioning  fairly  the  delegates  to  be 
1  Belknap,  Hist.  N.  H.,  Vol.  II.  p.  305. 


NEW  HAMPSHIRE   CONVENTION   OF  1775.  119 

chosen  to  it,  a  census  of  the  inhabitants  should  be  taken.  It 
was  moreover  recommended,  that  the  representatives  chosen 
"  should  be  empowered  by  their  constituents  to  assume  govern 
ment,  as  recommended  by  the  general  Congress,  and  to  continue 
for  one  whole  year  from  the  time  of  such  assumption."  l  Hav 
ing  recommended  this  plan,  and  "  sent  copies  of  it  to  the  sev 
eral  towns,  the  Convention  dissolved."  2  In  pursuance  of  the 
recommendations  accompanying  the  plan,  a  new  Convention 
was  chosen,  and  assembled  on  the  21st  of  December  following, 
by  which  the  first  Constitution  of  New  Hampshire  was  framed, 
and  her  first  formal  government,  independent  of  the  crown, 
established.3  According  to  Dr.  Belknap,  the  historian  of  the 
State,  "  as  soon  as  the  new  Convention  came  together,  they  drew 
up  a  temporary  form  of  government ;  and,  agreeably  to  the  trust 
reposed  in  them  by  their  constituents,  having  assumed  the  name 
and  authority  of  a  House  of  Representatives,  they  proceeded  to 
choose  twelve  persons,  to  be  a  distinct  branch  of  the  legislature, 
by  the  name  of  a  Council."4  This  form  of  government  was 
practically  limited  to  a  single  year  by  an  ordinance  providing 
"  that  the  present  Assembly  should  subsist  one  year,  and  if  the 
dispute  with  Great  Britain  should  continue  longer,  and  the  Gen 
eral  Congress  should  give  no  directions  to  the  contrary,  that 
precepts  should  be  issued  annually "  for  the  return  of  "  new 
Counsellors  and  Representatives."  By  the  Convention  thus  called 
and  organized  were  assumed  all  the  powers  of  government.  In 
a  word,  it  was  a  Revolutionary  Convention.  As  distinguished 
from  the  body  itself,  there  was  no  judiciary,  and  no  executive. 
The  only  feature  in  which  it  resembled  a  regularly  constituted 
government,  was  in  its  division  into  two  chambers.  But  even 
this  resemblance  vanishes,  when  it  is  considered  that  it  was  a 

1  Belknap,  Hist.  N.  H.<  Vol.  II.  p.  305. 

2  Nov.  16,  1775  ;  Id.  p.  305. 

3  Jan.  5,  1776. 

4  Belknap,  Hist.  N.  H.,  Vol.  II.  pp.  305,  306.     The  idea  of  thus  transforming 
the  Convention  into  a  legislative  assembly  with  two  chambers,  was  doubtless  bor 
rowed  from  the  Convention  called  by  King  William  in  1689,  which,  illegally 
called  and  constituted,  changed  itself  into  a  parliament,  since  known  as  the  Con 
vention  Parliament.     Though  unquestionably  a  revolutionary  body,  this  parlia 
ment  became  the  basis  on  which  the  English  government,  as  then  reconstructed, 
rested  and  still  rests.     See  remarks  of  Mr.  Webster  on  this  subject,  Works,  Vol. 
VI.  pp.  225,  226. 


120     NEW  HAMPSHIRE  CONVENTION  OF  1779  AND  1781. 

voluntary  division,  the  Council  being  its  own  creation,  and,  of 
course,  as  little  independent  of  the  main  body  as  any  one  of  its 
committees.  All  the  powers  of  the  State  were  concentrated 
in  that  single  body,  which  was  revolutionary  not  only  in  its  pro 
ceedings,  but  in  its  origin,  as  called  by  one  revolutionary  Con 
vention  at  the  instance  of  another,  and  as  exercising,  when 
assembled,  the  functions  of  a  government,  provisionally,  in  place 
of  that  by  which  it  was  convened. 

§  132.  The  people  of  New  Hampshire,  however,  becoming 
dissatisfied  with  the  temporary  Constitution  of  1776,  an  attempt 
was  made  three  years  later  to  frame  a  new  one.  A  Convention 
of  delegates,  chosen  for  that  purpose,  under  the  direction  of  the 
existing  government,  drew  up  and  presented  to  the  people  a  form 
of  a  Constitution,  but  so  deficient  in  its  principles  and  so  inade 
quate  in  its  provisions,  that,  being  proposed  to  the  people  in 
their  town-meetings,  it  was  rejected.1  On  the  failure  to  adopt 
this,  a  new  Convention  was  elected  for  the  same  purpose,  and 
commenced  its  sessions  in  1781.  The  year  before,  Massachu 
setts  had  adopted  a  Constitution,  in  the  main  from  a  draft  pre 
pared  by  John  Adams,  which  was  supposed  to  be  an  improve 
ment  on  all  that  had  been  framed  in  America.  Having  the  ad 
vantage  of  this,  the  New  Hampshire  Convention  digested  a  plan 
and  submitted  it  to  the  people  in  their  town-meetings,  with  a 
request  that  they  should  state  their  objections  distinctly  to  any 
particular  part,  and  return  them  to  the  Convention  at  a  fixed 
time.  The  objections  were  so  many  and  various,  that  it  became 
necessary  to  alter  the  form  and  send  it  out  a  second  time.2  The 
second  plan  was  generally  approved  by  the  people,  and  thus, 
finally,  after  nine  sessions  of  the  Convention,  running  through 
more  than  two  years,  a  Constitution  was  adopted  and  put  in 
operation,  —  the  instrument  being  completed  October  31,  1783, 
and  established  with  religious  solemnities  June  2,  1784. 

Of  these  two  last  Conventions,  it  is  to  be  noted,  that,  unlike 
the  first,  they  were,  in  the  strict  sense  of  the  term,  Constitutional 
Conventions.  They  were  initiated  by  the  existing  government 
of  the  State,  which,  whatever  may  be  thought  of  its  legitimacy 
or  regularity,  was  a  de  facto  government,  by  revolution  placed 
in  power,  and  made  the  basis  on  which  the  political  structure 
of  the  State  has  ever  since  rested ;  the  people  were  fairly  repre- 
l  Belknap,  Hist.  N.  #.,  Vol.  H  p.  333.  2  id.  pp.  335,  336. 


SOUTH  CAROLINA  CONVENTION  OP  1776.         121 

sented  in  them ;  they  confined  themselves  strictly  to  their  con 
stitutional  duty,  that  of  proposing  a  code  of  organic  laws,  ab 
staining  from  all  usurpation  of  governmental  powers ;  and, 
finally,  they  severally  submitted  their  projected  Constitutions  to 
a  vote  of  the  electors  of  the  State,  in  their  town  meetings  — 
an  act  which,  as  we  shall  see,  constitutes  the  best  guaranty 
of  the  sovereign  right  of  the  people  over  the  form  of  their  gov 
ernment  that  has  ever  been  devised.1 

§  133.  The  next  colony  to  act  on  the  recommendations  of 
Congress  was  South  Carolina.  Like  the  other  colonies  whose 
legislatures  had  been  dissolved,  South  Carolina  had  governed 
herself,  since  the  rupture  with  Great  Britain,  by  Provincial  Con 
ventions  or  Congresses,  constituting  provisional  governments, 
founded  upon  the  right  of  revolution.  The  first  of  these  had 
been  summoned  November  9,  1774,  by  what  was  styled  "  the 
general  committee  "  of  the  colony.2  This  body  was  organized 
similarly  to  those  in  the  other  colonies,  and,  after  the  flight  of 
the  royal  governor  in  September,  1775,  centred  in  itself,  or  in  its 
committees,  all  the  powers  of  government  not  vested,  by  the 
nature  of  the  case,  in  the  Continental  Congress.  Toward  the 
close  of  the  latter  year,  the  necessity  for  a  more  stable,  as  well 
as  a  more  responsible  government,  made  itself  felt,  and  the  Con 
vention  applying  to  Congress,  as  we  have  seen,  for  advice  as  to 
the  formation  of  such  a  government,  had  been  recommended, 
in  the  same  terms  as  New  Hampshire,  "  to  call  a  full  and  free 
representation  of  the  people,  to  establish  such  a  form  of  govern 
ment  as  in  their  judgment  will  best  promote  the  happiness  of 
the  people."  3  Acting  upon  this  advice,  and  following,  though 
not  perfectly,  the  example  of  New  Hampshire,  the  South  Caro 
lina  Congress,  in  conformity  to  the  course  of  the  Convention  of 
1689,  in  England,  and  to  that  of  their  ancestors  in  1719,  "  voted 
themselves  to  be  the  General  Assembly  of  South  Carolina," 
and  framed  a  Constitution,  March  26,  1776,  to  exist  "  till  a  rec 
onciliation  between  the  colonies  and  Great  Britain  should  take 
place."  This  Constitution  was  modelled  after  that  of  Great 

1  See  post,  ch.  vii. 

2  This  general  committee  consisted  of  ninety-nine   members,  and  was   ap 
pointed  by  resolution   of  a  public  meeting  held  at  Charleston  July  6,  1774. 
Hild.  Hist.  U.  S.,  (1st  series,)  Vol.  IH.  p.  40. 

3  Resolution  of  the  Continental  Congress  of  Nov.  3,  1775,  ante,  §  127. 


122         SOUTH  CAROLINA  CONVENTION  OF  1778. 

Britain,  and  consisted  of  three  branches :  the  Congress  electing 
thirteen  of  its  most  respectable  members  to  be  a  legislative 
council  ;  a  president  and  vice-president  ;  a  chief-justice  and 
three  assistant  judges,  an  attorney-general,  secretary,  ordinary, 
and  judge  of  the  admiralty.1  The  instrument  embodying  this 
plan  of  government  was  put  in  force  as  the  Constitution  of 
South  Carolina,  and  was  recognized  as  such  for  over  two  years, 
when  it  was  superseded  by  a  new  one. 

§  134.  It  is  obvious  that  the  mode  of  proceeding  of  which 
the  result  was  the  establishment  of  the  first  Constitution  of 
South  Carolina,  was  extremely  irregular.  The  people  of  the 
State  were  in  no  manner  consulted  in  relation  to  its  formation. 
The  body  by  whom  that  important  business  was  done,  was  an 
extraordinary  assembly,  "  appointed,"  as  the  historian  Ram 
say  says,  "  without  the  authority  of  any  written  law  or  any 
definite  specification  of  powers."  To  the  function  of  a  Consti 
tutional,  it  added  those  of  a  Revolutionary,  Convention  ;  its  char 
acter  as  the  latter  being  in  nowise  affected  by  the  change  in  its 
organization,  by  which  it  assumed  the  form  of  a  regular  govern 
ment.  The  only  element  of  legitimacy  possessed  by  it  was, 
that  the  action  taken  by  it  was  based  upon  a  recommendation 
of  the  Continental  Congress,  in  whom  was  vested  for  general 
purposes  the  exercise  of  the  national  sovereignty. 

§  135.  A  Constitution  thus  constructed  was  not  likely  to  be 
long-lived.  A  second,  but  hardly  more  successful,  effort  was 
made  in  1778.  In  this  case  it  was  not  an  unauthorized  and  rev 
olutionary  Convention,  but  an  usurping  legislature,  which  under 
took  the  task.  In  the  autumn  of  1776,  the  elections  throughout 
the  State,  says  the  historian  Ramsay,  "  were  conducted  on  the 
idea  that  the  members  chosen,  over  and  above  the  ordinary 
powers  of  legislators,  should  have  the  power  to  frame  a  new 
Constitution,  suited  to  the  declared  independence  of  the  State." 
"Authorized  in  this  manner,"  he  continues,  "  the  legislature  in 
January,  1777,  began  the  important  business  of  framing  a  per 
manent  form  of  government.  The  generous  confidence  reposed 
in  the  elected  by  the  electors  met  with  a  suitable  return  of  fidel 
ity  on  their  part.  Instead  of  increasing  their  own  powers,  as 
legislators,  they  diminished  those  of  which  they  were  in  posses 
sion  by  the  temporary  Constitution,  and  extended  the  privileges 
l  Ramsay,  Hist.  S.  C.,  Vol.  I.  p.  263. 


SOUTH  CAROLINA  CONVENTION  OF  1778.         123 

of  Iheir  constituents;  nor  did  they  proceed  to  give  a  final  sanc 
tion  to  their  deliberations  on  the  subject  of  the  Constitution  till 
they  had  submitted  them  for  the  space  of  a  year  to  the  consid 
eration  of  the  people  at  large.  From  the  general  approbation 
of  the  inhabitants,  the  new  Constitution  received  all  the  author 
ity  which  could  have  been  conferred  on  the  proceedings  of  a 
Convention  expressly  delegated  for  the  express  purpose  of  fram 
ing  a  form  of  government."  1 

§  136.  It  would  be  easy  to  demonstrate  that  the  Constitution 
of  1778,  thus  framed,  was  wholly  invalid  as  an  act  of  funda 
mental  legislation.  Without  stopping  to  do  this,  I  shall  merely 
cite  authority  establishing  the  fact  that  it  was  so  regarded  by 
leading  minds  at  the  time  of  its  formation. 

"  This  temporary  Constitution  "  (that  of  1776),  says  the  same 
historian,  Ramsay,  in  his  history  of  South  Carolina,  "in  a  lit 
tle  more  than  two  years  gave  place  to  a  new  one  formed  on  the 
idea  of  independence,  which  in  the  mean  time  had  been  de 
clared.  The  distinction  between  a  Constitution  and  an  act  of 
the  legislature  was  not  at  this  period  so  well  understood  as  it 
has  been  since.  The  legislature  elected  under  the  Constitution 
of  1776,  with  the  acquiescence  of  the  people,  undertook  to  form 
a  new  Constitution,  and  to  give  it  activity  under  the  forms  and 
with  the  name  of  an  "Act  of  Assembly!"  The  doubt  thus 
implied  was  entertained  by  other  eminent  South  Carolinians. 
President  Rutledge  refused  his  assent  to  the  new  Constitution,  on 
the  ground,  with  others,  that  the  legislative  authority,  being  fixed 
and  limited,  could  not  change  or  destroy  itself  without  subvert 
ing  the  Constitution  from  which  it  was  derived.  He  finally, 
however,  so  far  yielded  to  the  pressure  for  a  change  as  to  resign 
his  office,  whereupon  his  successor,  Rawlins  Lowndes,  signed 
the  Constitution,  and  it  went  into  operation.2 

§  137.  As  to  the  character  of  the  body  by  which  the  Constitu 
tion  was  framed,  on  the  other  hand,  there  can  be  no  doubt  what 
ever.  As  a  Constitutional  Convention,  it  lacked  all  the  elements 
needed  to  give  it  legitimacy.  It  was  elected  and  assembled  as 

1  Ramsay's  History  of  the  Revolution  in  South  Carolina,  pp.  128,  129. 

2  That  the  first  two  South  Carolina  Constitutions  were  merely  ordinary  stat 
utes,  repealable  by  the  General  Assembly,  was  distinctly  affirmed  by  the  Supreme 
Court  of  that  State,  in  the  case  of  Thomas  v.  Chesley  Daniel,  2  Mo  Cord's  R. 
354,  (359,  360). 


124  VIRGINIA    CONVENTION   OP   1776. 

a  legislature,  and  as  nothing  else.  Notwithstanding  the  loose 
assertion  of  Dr.  Ramsay,  that  that  body  had  been  elected  "  on 
the  idea  "  that,  "  over  and  above  the  ordinary  powers  of  legisla 
tors,"  it  should  have  power  to  frame  a  new  Constitution,  what 
ever  it  did  beyond  the  scope  of  ordinary  legislation  must  be  set 
down,  in  the  absence  of  any  regular  expression  to  that  effect  of 
the  public  will,  as  mere  usurpation.  How  general  was  that 
idea  ?  What  mode  was  taken  to  ascertain  its  existence,  and, 
much  more,  to  ascertain  the  extent  to  which  it  was  not  enter 
tained  ?  Not  only  did  the  legislature  undertake,  without  legal 
warrant,  to  frame  a  code  of  organic  laws,  but  it  practically 
ignored  the  existence  of  the  people,  putting  its  work  into  opera 
tion  without  a  submission  to  them  that  was  at  all  effectual.  It 
thus  became  guilty  of  acts  of  revolution,  for  which  ignorance  of 
"  the  distinction  between  a  Constitution  and  an  act  of  legisla 
tion  "  cannot  be  received  as  an  excuse. 

§  138.  Next  in  order  after  South  Carolina,  in  the  work  of 
erecting  a  government,  followed  Virginia.1  This  she  did,  as 
New  Hampshire  and  South  Carolina  had  done,  in  pursuance  of 
the  resolutions  of  the  Continental  Congress  of  the  3d  and  4th 
of  November,  1775,  referred  to,  advising  those  colonies  "  to  call 
a  full  and  free  representation  of  the  people"  for  that  purpose. 
The  mode  adopted  by  Virginia  was  similar  to  that  followed  in 
those  .colonies.  The  Provincial  Convention  elected  in  April, 
1776,  to  continue  in  office  one  year,  met  at  Williamsburg  on 
the  6th  of  May  thereafter,  and  on  the  29th  of  June  following 
framed  and  established  the  first  Constitution  of  Virginia.2  This 
Convention  was  elected  as  a  revolutionary  assembly,  to  carry  on, 
as  Mr.  Jefferson  expresses  it,  "  the  ordinary  business  of  the  gov- 

1  It  has  been  usual  to  concede  to  Virginia  the  honor  of  having  framed  the 
first  American  Constitution.     If  by  that  be  meant  the  first  which  was  complete 
according  to  later  ideas  of  what  a  Constitution  should  be,  the  concession  is  just. 
The  first  Constitutions  of  New  Hampshire  and  South  Carolina,  which  were  sev 
eral  months  earlier  in  date  than  that  of  Virginia,  were  very  imperfect,  while  the 
latter  was  so  skilfully  framed  that  it  was  not  found  necessary  to  change  it  until 
1830,  nearly  three  quarters  of  a  century  after  its  formation.     In  this  statement 
I  leave  out  of  the  account  altogether  the  instruments  of  government  drawn  up 
by  the  early  Puritan  settlers  of  Massachusetts  and  Connecticut.     If  those  instru 
ments  are  to  be  called  Constitutions,  the  earliest  American  Constitution  was  that 
framed  on  board  of  the  Mayflower,  before  the  landing  at  Plymouth. 

2  Journal  of  Virginia  Convention,  1776,  pp.  15,  16,  150. 


NEW  JERSEY   CONVENTION    OP   1776.  125 

ernment,"  in  default  of  the  House  of  Burgesses,  and  to  "  call 
forth  the  powers  of  the  State  for  the  maintenance  of  the  oppo 
sition  to  Great  Britain."  l  It  was  not  pretended,  if  the  same 
authority  is  to  be  credited,  that,  in  assuming  to  frame  a  Consti 
tution,  the  Convention  had  any  warrant  or  authority  whatever, 
except  such  as  enured  to  it  by  virtue  of  its  revolutionary  char 
acter.  In  so  doing,  then,  it  is  to  be  regarded,  not  as  a  Constitu 
tional,  but  as  a  Revolutionary  Convention.  It  was  not  empowered 
to  discharge  the  special  and  high  function  of  enacting  a  funda 
mental  code,  by  any  law  or  by  the  express  desire  of  the  people,  but 
acted  on  its  own  authority ;  and  it  did  not  deign  to  take  upon 
its  work  the  sense  of  the  people  whom  it  pretended  to  represent.2 
§  139.  Very  similar  to  that  just  described  was  the  course  of 
events  in  New  Jersey.  Like  most  of  the  colonies,  at  the  time 
the  resolution  of  Congress  of  May  10,  1776,  passed  that  body, 
New  Jersey  was  under  the  government  of  a  Provincial  Congress 
and  committees.  The  Congress  being  in  session  directly  after 
the  resolution  was  published,  prompt  action  was  taken  to  carry 
out  its  recommendations.  A  resolution  was  adopted  for  the 
election  of  a  new  Congress,  to  be  held  on  the  4th  Monday  of 
May,  1776.  Representatives  were  accordingly  chosen  at  that 
time  in  all  the  counties,  and  the  delegates  elected,  sixty-five  in 
number,  being  five  from  each  county,  convened  at  Burlington, 
on  the  10th  of  June,  1776.3  It  does  not  appear,  that  this  Con 
gress  or  Convention  (for,  elected  by  the  former  name,  it  formally 
changed  its  title  from  "  Congress  "  to  "  Convention  "  in  the  course 
of  the  session  at  which  the  Constitution  was  framed)  was  elected 
for  the  sole  purpose  of  framing  a  Constitution,  but  rather  as  the 
successor  of  that  Congress  by  whose  resolution  it  had  been  con 
stituted.  Nevertheless,  it  is  probable,  that  the  purpose  of  elect 
ing  new  delegates  was  understood  by  the  people  to  be  to  take 
action  upon  the  two  momentous  questions  of  independence  and 
of  the  formation  of  a  government  suitable  to  the  altered  condi- 

1  Jefferson,  Notes  on  Virginia,  Works,  Vol.  VIII.  p.  363. 

2  Ibid.     As  to  the  invalidity  of  the  first  Virginia  Constitution,  as  an  act  of 
organic  legislation,  and  therefore  as  to  its  repeatability  by  the  General  Assembly 
in  consequence  of  the  irregular  character  of  the  Convention  of  1776,  see  Jeffer 
son's  Notes  on  Virginia,  Works,  Vol.  VIII.  pp.  363-367.     For  an  opposite  view, 
see  Tucker's  Black.  Com.,  Vol.  I.  Pt.  1,  Appendix,  pp.  85,  86,  and  Kamper  v. 
Hawkins,  1  Virg.  Crim.  Cases,  20. 

3  Mulford,  Hist.  N.  /.,  p.  415. 


126  NEW  JERSEY  CONVENTION  OF  1776. 

tion  of  affairs.  However  that  may  be,  when  the  Congress  met 
at  Burlington,  petitions  were  received  from  the  inhabitants  in 
different  parts  of  the  province,  praying  that  a  new  form  of  gov 
ernment  might  be  established.1  On  the  21st  of  June,  therefore, 
a  resolution  was  adopted  by  a  vote  of  54  to  3,  "  that  a  govern 
ment  be  formed  for  regulating  the  internal  police  of  this  colony, 
pursuant  to  the  recommendation  of  the  Continental  Congress 
of  the  15th  of  May  last." 2  On  the  24th,  a  committee  of  ten 
persons  was  appointed  to  draft  a  Constitution,  by  whom  a  report 
was  made  on  the  26th  of  the  same  month,  and  the  draft  reported, 
after  discussion  in  the  committee  of  the  whole,  was,  on  the  2d 
of  July,  adopted  as  the  Constitution  of  the  State,  and  put  in 
operation. 

§  140.  It  is  not  surprising  that  doubts  have  existed  as  to  the 
precise  character  of  the  first  New  Jersey  Convention.  It  was  not 
the  Assembly  of  the  colony,  established  under  the  crown,  but  a 
Provincial  Congress,  convened  to  engineer  the  Revolution,  which 
called  the  body  together.  It  was,  therefore,  probably,  a  revolu 
tionary  assembly.  This  becomes  certain,  when  it  is  seen  that 
the  body  "  had  not  been  chosen  for  the  particular  purpose  of 
forming  a  Constitution,"  but  that  it  had  "  entered  upon  it  in  pur 
suance  of  the  recommendation  of  the  General  Congress,  and  in 
compliance  with  petitions  from  the  people,  together  with  the 
sense  of  the  body  itself,  as  to  the  necessity  of  the  measure,"  3 
this  function  being  added,  without  legal  warrant,  to  the  mass  of 
powers  claimed  and  exercised  by  it  in  virtue  of  its  revolutionary 
character.  As  a  Constitutional  Convention,  then,  the  body  was 
irregular  and  illegitimate.  It  was  a  provisional  revolutionary 
government,  resting  on  force,  and  invested  with  such  powers  as 
it  chose  to  assume.4  Though  mention  is  made  of  petitions  of 
the  people,  they  were  obviously  of  no  validity  as  forming  a 
basis  for  fundamental  legislation.  What  the  Convention  did, 

1  Mulford,  Hist.  N.  «/.,pp.  415-418  ;  Journal  of  N.  J.  Conv.,  1776,  pp.  9,  14,  23. 

2  Mulford,  Hist.  N.  /.,    pp.  415-418  ;  Journal  of  N.  J.  Conv.,  1776,  p.  23. 

3  Mulford,  Hist.  N.  /,,  p.  415,  n.  (24). 

4  The  journal  of  this  Convention,  like  those  of  most  of  the  Conventions  of 
the  Revolutionary  period,  was  largely  made  up  of  legislative  and  executive 
details,  covering  the  whole  ground  of  a  government  for  the  colony  in  civil  as 
well  as  in  military  affairs.     It  administered  —  a  function,  as  we  have  seen  in  the 
first  chapter,  never  properly  belonging  to  a  Constitutional  Convention.     See 
Journal,  passim. 


DELAWARE  CONVENTION  OF  1776.  127 

was  done  by  virtue  of  its  own  arbitrary  discretion,  and  no  refer 
ence  was  made,  in  any  stage  of  the  proceedings,  to  the  people, 
to  ascertain  their  sense,  much  less  to  derive  from  their  ratifying 
voice  ihefiat  which  should  give  to  the  Constitution  the  form  as 
well  as  the  effect  of  law.  The  first  New  Jersey  Convention 
was  legitimate  as  a  Constitutional  Convention  only  as  any  self- 
elected  junto  would  be  so,  which  had  the  physical  power  to  give 
to  its  ordinances  the  force  of  law. 

§  141.  Of  the  proceedings  of  the  Convention  which  framed 
the  first  Constitution  of  Delaware,  few  traces  have  been  pre 
served.  That  that  body  itself,  however,  was,  for  the  time  when 
it  was  held,  exceptionally  regular,  may  be  inferred  from  the  few 
records  relating  to  its  origin  which  remain. 

In  July,  1776,  the  Delaware  House  of  Assembly  passed  the 
following  preamble  and  resolutions,  to  wit :  — 

"  The  House,  taking  into  consideration  the  resolution  of  Con 
gress  of  the  15th  of  May  last  for  suppressing  all  authority  de 
rived  from  the  Crown  of  Great  Britain,  and  for  establishing  a 
government  upon  the  authority  of  the  people,  and  the  resolution 
of  the  House  of  the  15th  of  June  last,  in  consequence  of  the 
said  resolution  of  Congress,  directing  all  persons  holding  offices, 
civil  or  military,  to  execute  the  same  in  the  name  of  this  gov 
ernment  until  a  new  one  should  be  formed  ;  and  also  the  dec 
laration  of  the  United  States  of  America,  absolving  from  all 
allegiance  to  the  British  Crown,  and  dissolving  all  political  con 
nection  between  themselves  and  Great  Britain,  lately  published 
and  adopted  by  this  government,  as  one  of  those  States,  are  of 
opinion  that  some  speedy  measures  should  be  taken  to  form  a 
regular  mode  of  civil  polity,  and  this  House,  not  thinking  them 
selves  authorized  by  their  constituents  to  execute  this  important 
work  — 

"  Do  resolve  — 

"  That  it  be  recommended  to  the  good  people  of  the  several 
counties  in  this  government  to  choose  a  suitable  number  of  dep 
uties,  to  meet  in  Convention,  there  to  organize  and  declare  the 
future  form  of  government  for  this  State. 

"  Resolved,  also  — 

"  That  it  is  the  opinion  of  this  House,  that  the  said  Conven 
tion  should  consist  of  thirty  persons,  that  is  to  say,  ten  for  the 
County  of  New  Castle,  ten  for  the  County  of  Kent,  and  ten  for 


128  DELAWARE   CONVENTION   OP   1776. 

the  County  of  Sussex;  and  that  the  freemen  of  the  counties 
respectively  do  meet  on  Monday,  the  19th  day  of  August  next, 
at  the  usual  places  of  election  for  the  county,  and  then  and 
there  proceed  to  elect  the  number  of  deputies  aforesaid,  accord 
ing  to  the  direction  of  the  several  laws  of  this  government  for 
regulating  elections  of  the  members  of  Assembly,  except  as  to 
the  choice  of  inspectors,  which  shall  be  made  on  the  morning  of 
the  day  of  election  by  the  electors,  inhabitants  of  the  respective 
Hundreds  in  each  county 

"  Resolved,  also  — 

"  That  it  is  the  opinion  of  this  House  that  the  deputies,  when 
chosen  as  aforesaid,  shall  meet  in  Convention  in  the  town  of 
New  Castle,  on  Tuesday,  the  twenty-seventh  day  of  the  same 
month,  (August,)  and  immediately  proceed  to  form  a  govern 
ment  on  the  authority  of  the  people  of  this  State,  in  such  sort 
as  may  be  best  adapted  for  their  preservation  and  happiness."  1 

§  142.  In  pursuance  of  the  recommendations  contained  in 
these  resolutions,  a  Convention  was  elected  on  the  19th  of  Au 
gust,  1776,  which  met  at  the  town  of  New  Castle  on  Tuesday, 
the  27th  of  August,  and,  after  a  session  of  twenty-eight  days, 
adopted  the  first  Constitution  of  Delaware. 

If,  to  the  particulars  given  in  the  foregoing  resolutions,  there 
be  added  the  caption  to  the  new  Constitution,  the  perfect  regu 
larity  and  legitimacy  of  the  Convention  thus  called,  from  the 
point  of  view  of  the  new  State  of  Delaware,  will  become  appa 
rent.  That  caption  is  as  follows :  "  The  Constitution  or  system 
of  government  agreed  to  and  resolved  upon  by  the  representa 
tives  in  full  Convention,  of  the  Delaware  State,  formerly  styled," 
&c.,  "  the  said  representatives  being  chosen  by  the  freemen  of  the 
said  State,  for  that  express  purpose" 

Here  was  a  Convention  called  by  the  legislative  Assembly  of 
the  existing  government,  by  an  Act  making  careful  provisions  for 
a  fair  election,  and,  as  may  be  inferred,  elected  for  the  express 
and  only  purpose  of  framing  a  Constitution.  Confining  itself 

1  Journal  of  Del.  Conv.  of  1776.  For  the  foregoing  extract  I  am  indebted 
to  William  T.  Read,  Esq.,  of  New  Castle,  Del.,  who  has  in  his  possession  a 
manuscript  copy  of  the  journal,  the  only  one  known  to  be  in  existence.  It  was 
procured  from  Mr.  Read  through  the  kindness  of  the  Hon.  Willard  Hall,  of  Wil 
mington,  Del.,  to  whom  I  am  indebted  for  valuable  information  respecting  the 
various  Conventions  of  that  State. 


PENNSYLVANIA  CONVENTION  OP  1776.          129 

probably  to  this  limited  function,  it  was  strictly  a  Constitutional 
Convention. 

§  143.  In  Pennsylvania,  the  last  Assembly  elected  under  the 
proprietary  government  continued  to  meet  down  almost  to  the 
Declaration  of  Independence,  but  often  without  a  quorum.  At 
length,  in  July,  1776,  it  was  superseded  by  a  Provincial  Conven 
tion,  which,  based  on  revolutionary  principles,  took  the  govern 
ment  into  its  own  hands.  The  mode  of  calling  that  body  was 
as  follows  :  On  the  18th  of  June,  1776,  a  number  of  gentle 
men  met  at  Carpenter's  Hall,  in  Philadelphia,  being  deputed  by 
the  committees  of  several  of  the  counties  of  the  province,  to 
join  in  conference,  in  pursuance  of  a  circular  letter  from  the 
committee  of  Philadelphia,  inclosing  the  resolution  of  the  Con 
tinental  Congress  of  May  10th,  1776. 1  After  a  vote  approving 
of  that  resolution,  it  was  unanimously  resolved  by  the  confer 
ence,  that  it  was  necessary  that  a  Provincial  Convention  should 
be  called  by  them,  "  for  the  express  purpose  of  forming  a  new 
government  for  this  province,  on  the  authority  of  the  people 
only."  2  The  conference  then  proceeded  to  fix  the  qualifications 
of  electors  of  deputies  to  the  Convention,  giving  a  vote  to  all 
"  associators  "  in  the  province,  of  the  age  of  twenty-one  years, 
who  had  lived  one  year  in  the  province,  and  paid  or  been  as 
sessed  toward  any  provincial  or  county  tax,  and  also  to  every 
person  qualified  by  the  laws  of  the  province  to  vote  for  repre 
sentatives  in  Assembly,  upon  their  taking  a  prescribed  oath.  A 
committee,  appointed  to  apportion  the  representation  in  the  Con 
vention  amongst  the  several  districts  of  the  province,  recom 
mended,  and  the  conference  voted,  that  eight  representatives 
should  be  sent  by  the  City  of  Philadelphia,  and  eight  by  each 
county  in  the  province.  The  electors  were  then  required  to  meet 
on  the  8th  of  July  following,  to  elect  the  members  of  the  Con 
vention,  and  the  latter,  to  meet  on  the  15th  of  the  same  month. 
On  the  day  appointed  the  Convention  met  at  Philadelphia,  and 
continued  in  session  until  the  28th  of  September  following, 
when  it  adopted  and  put  into  operation  the  first  Constitution  of 
Pennsylvania. 

§  144.  Although  the  resolution  of  the  conference  calling  this 
Convention  "  for  the  express  purpose  of  forming  a  new  govern 
ment,"  &c.,  might  be  construed  to  limit  that  body  to  that  par- 
1  Conventions  of  Pennsylvania,  p.  35.  2  Id.  p.  38. 


130  PENNSYLVANIA   CONVENTION   OF   1776. 

ticular  business,  yet  it  did  not  in  fact  so  restrict  itself,  and  it  is 
doubtful  if  the  conference  intended  so  to  restrict  it,  for,  by  sub 
sequent  resolution,  passed  on  the  23d  of  June,  the  latter  recom 
mended  to  the  Convention  to  choose  delegates  to  the  Conti 
nental  Congress,  and  also  a  Council  of  Safety  to  exercise  the 
whole  executive  powers  of  government,  so  far  as  related  to  the 
military  defense  of  the  province,  and  to  make  such  allowance 
for  their  services  as  should  be  reasonable.  Thus  the  Convention 
received  from  the  body  calling  it,  so  far,  at  least,  as  the  latter 
could  give  it,  authority  to  exercise  both  legislative  and  executive 
functions,  in  addition  to  those  enuring  to  it  by  virtue  of  its  spe 
cial  commission  ;  and  the  journal  of  that  body  shows,  that  much 
of  its  time  was  occupied,  from  day  to  day,  while  framing  the 
Constitution,  in  business  of  an  ordinary  legislative  or  executive 
character.  Of  the  illegitimacy,  therefore,  of  this  Convention, 
considered  as  a  Constitutional  Convention,  there  is  no  doubt. 
Based  upon  necessity,  in  times  of  revolution,  while  that  body 
became  the  foundation  of  a  new  order  of  things,  to  which  must 
be  conceded,  especially  after  it  received  the  acquiescence  of  the 
people,  a  relative  legality  or  legitimacy,  yet  it  was  itself,  both  in 
its  origin  and  in  its  essential  character,  a  revolutionary  assembly. 
It  was  not  only  that,  it  was  for  a  revolutionary  assembly  formed 
less  regularly,  that  is,  with  a  greater  divergence  from  safe  con 
stitutional  precedents,  than  was  really  necessary.  It  was  called 
by  a  self-constituted  conference  of  committees,  themselves  ap 
pointed  without  legal  sanction ;  and  the  question  of  its  assem 
bling,  or  of  ratifying  the  fruit  of  its  labors,  was  not  submitted 
to  a  vote  of  the  people,  though  it  is  true  the  delegates  of  which 
it  was  composed  were  chosen  by  the  electors  under  the  old 
establishment,  but  by  them  together  with  others  named  by  the 
conference.  This  latter  circumstance,  instead  of  adding  to  its 
regularity,  was  a  wider  departure  from  safe  precedents  than  any 
other  that  occurred,  since  the  power  of  election  was  given  to 
persons  by  existing  laws  not  authorized  to  vote  at  general  elec 
tions.  From  all  this  it  is  clear,  that,  however  perfectly  the  body 
may  have  reflected  the  public  will,  the  first  Pennsylvania  con 
vention  was  a  Revolutionary  and  not  a  Constitutional  Convention. 
It  was  itself,  for  the  term  of  its  existence,  the  government  of 
Pennsylvania,  not  a  mere  auxiliary  or  adviser  to  the  govern 
ment. 


MARYLAND   CONVENTION   OF    1776.  131 

§  145.  Substantially  the  same  observations  may  be  made 
respecting  the  Convention  which  framed  the  first  Constitution  of 
Maryland.  For  over  two  years  prior  to  the  assembling  of  that 
body,  the  colony  of  Maryland  had  been  governed  by  a  provis 
ional  organization  of  revolutionary  origin,  her  Provincial  Con 
gress,  which,  like  most  of  its  fellows  in  the  sister  colonies, 
wielded  all  the  powers  of  government  —  legislative,  executive, 
and  judicial.  This  body,  having  early  received  a  copy  of  the 
resolution  of  the  Congress  of  May  10th,  1776,  after  much  reluc 
tance  and  hesitancy,  on  the  3d  of  July,  1776,  resolved,  "  That 
a  new  Convention  be  elected  for  the  express  purpose  of  forming 
a  new  government,  by  the  authority  of  the  people  only,  and 
enacting  and  ordering  all  things  for  the  preservation,  safety,  and 
general  weal  of  this  colony."  It  then  proceeded  to  apportion 
the  representation  in  the  Convention,  determine  the  qualifications 
of  voters,  and  the  mode  of  conducting  the  elections,  and  to  ap 
point  judges  thereof.  The  city  of  Annapolis,  the  town  of  Balti 
more,  and  the  several  districts  of  the  county  of  Frederick,  were 
to  have  two  representatives  each,  and  the  remaining  counties 
four  each.  Every  freeman  above  twenty-one  years  of  age,  pos 
sessed  of  the  freehold  or  other  property  qualification  specified  in 
the  resolutions,  was  entitled  to  vote  at  the  election  of  repre 
sentatives  in  the  Convention.  The  members  elected  were  to 
meet  in  Convention  on  Monday,  the  12th  of  August,  1776,  and 
were  to  continue  in  session  not  beyond  the  first  day  of  Decem 
ber,  1776.1  The  Convention  met  in  accordance  with  these  reso 
lutions,  framed  and  adopted  a  Constitution  November  8th,  1776, 
and,  on  the  llth  of  the  same  month,  after  a  session  of  eighty- 
nine  days,  adjourned. 

As  in  the  case  of  the  Pennsylvania  Convention,  a  very  large 
proportion  of  all  the  time  occupied  in  the  session  of  that  of 
Maryland,  was  taken  up  in  ordinary  legislative  and  executive 
business,  or,  in  the  language  of  the  resolutions  under  which  it 
assembled,  in  "  enacting  and  ordering  all  things  for  the  preserva 
tion,  safety,  and  general  weal "  of  the  colony.  It  was,  in  a 
word,  the  only  government  that  colony  had  during  the  interim 
between  the  adjournment  of  the  old  Provincial  Convention  and 
the  establishment  of  the  State  government  under  the  first  Con 
stitution.  It  was,  therefore,  not  a  Constitutional  Convention,  but 
l  Conventions  of  Md.,  pp.  184-189. 


132         NORTH  CAROLINA  CONVENTION  OF  1776. 

a  provisional  government,  or  Revolutionary  Convention.  Or,  if 
the  circumstance  that  the  body  assumed  no  powers  not  specifi 
cally  granted  by  the  Provincial  Congress,  be  urged  as  indicating 
that  it  was  not  a  revolutionary  body,  it  was  at  least  an  abnormal 
assembly  wielding  the  combined  powers  of  government,  and, 
besides,  exercising  the  incompatible  power  of  remolding  .the 
political  society  from  which  all  its  ordinary  powers  were  derived. 
Considering  its  origin,  however,  and  the  fact  that  the  structure 
founded  by  it  was  established  by  the  sole  authority  of  the  Con 
vention  itself,  that  body  was  clearly,  as  a  Constitutional  Conven 
tion,  irregular  and  revolutionary. 

§  146.  In  North  Carolina  an  early  but  unsuccessful  effort  was 
made  to  establish  a  civil  government  independent  of  the  crown. 
At  its  session  at  Halifax,  in  April,  1776,  the  Provincial  Conven 
tion  of  North  Carolina  appointed  a  committee  of  its  ablest  men 
to  prepare  a  draft  of  a  Constitution.  This  committee  being 
unable  to  agree  upon  any  form,  after  much  debate  and  frequent 
postponements,  the  question  was  adjourned,  and  a  committee 
appointed  to  propose  a  temporary  form  of  government  until  the 
next  session.  The  system  adopted  was  that  of  a  Council  of 
Safety,  which  body  recommended  to  the  people  to  elect,  on  the 
loth  of  October,  delegates  to  a  Congress,  to  assemble  at  Halifax 
on  the  12th  of  November  following,  "  which  was  not  only  to 
make  laws  but  also  to  frame  a  Constitution,  which  was  to  be  the 
corner-stone  of  the  law."  l  The  Convention  met  at  the  time  and 
place  appointed,  and,  on  the  18th  of  December,  adopted  the  first 
Constitution  and  Bill  of  Rights  of  North  Carolina.2  As  recom 
mended  by  the  Council  of  Safety,  this  Convention  did  not  con 
fine  itself  to  the  business  of  framing  a  Constitution,  but  "  per 
formed  the  functions  of  an  ordinary  legislature."  3 

If  it  were  conceded,  then,  that  that  body  was  legitimate  in  its 
origin,  as  having  been  called  by  the  de  facto  government  of 
North  Carolina,  the  Council  of  Safety,  it  ceased  to  be  legitimate 
as  a  Constitutional  Convention  the  moment  it  assumed  general 
powers  of  legislation  and  government.  It  then  became  a  Revo 
lutionary  Convention,  with  independent  powers,  whose  extent 
was  limited  only  by  its  own  discretion.  But  it  was  not  legiti- 

1  Wheeler's  Hist.  N.  C.,  p.  84. 

2  Id.  p.  86. 

3  Rev.  Code  of  N.  C.,  (1845,)  p.  5. 


:  GEORGIA  CONVENTION  OP  1776.  133 

mate  even  in  its  origin.  It  was  at  once  the  appointee  and  the 
successor  of  the  Council  of  Safety,  a  revolutionary  tribunal,  in 
whose  single  hands  was  massed  the  whole  power  of  the  State, 
which  it  passed  over  to  the  Convention  called  by  itself. 

§  147.  The  first  independent  government  of  Georgia  consisted 
of  a  Provincial  Congress,  organized  in  January,  1775. 

Feeling  the  need,  however,  of  some  broader  basis  of  action, 
the  Provincial  Congress  itself,  on  the  15th  of  April,  1776,  adopted 
a  preamble  and  resolutions  as  the  groundwork  of  a  more  stable 
and  formal  government,  the  result  of  which  was  the  establish 
ment  of  a  system  similar  to  that  adopted  in  New  Hampshire 
and  other  colonies,  under  the  recommendations  of  Congress 
of  November  3  and  4,  1775 ;  that  is,  the  Provincial  Congress 
resolved  itself  into  a  legislature,  and  appointed  a  President,  a 
Council  of  Safety  of  thirteen  members,  and  judicial  and  execu 
tive  officers,1  —  an  evident  imitation  of  the  action  of  the  Eng 
lish  convention  of  1689  in  voting  itself  to  be  a  Parliament.  By 
the  terms  of  the  resolutions,  however,  the  system  was  to  be  a 
temporary  one,  to  continue  only  "  for  the  present,  and  until  the 
further  order  of  the  Continental  Congress,  or  of  this  or  any 
future  Provincial  Congress." 

Accordingly,  when,  in  July,  1776,  the  Declaration  of  Inde 
pendence  was  adopted,  it  was  deemed  necessary  "  to  take  down 
the  old  civil  and  political  superstructures  and  erect  new  estab 
lishments  in  their  places."  In  the  words  of  the  historian  of  the 
State,  "  to  meet  the  exigency  arising  from  this  new  attitude  of 
the  Continental  Congress,  in  declaring  the  American  colonies 
free  and  independent,  President  Bullock  issued  a  proclamation, 
based  on  a  recommendation  of  the  general  Congress,  ordering  the 
several  parishes  and  districts  within  this  State  to  proceed  to  the 
election  of  delegates,  between  the  1st  and  10th  days  of  Septem 
ber  next,  to  form  and  sit  in  Convention  ;  and  the  delegates  so 
elected  are  directed  to  convene  at  Savannah  on  the  first  Tues 
day  in  October  following,  when  business  of  the  highest  conse 
quence  to  the  government  and  welfare  of  the  State  will  be 
opened  for  their  consideration."  2 

"  The  deputies,"  he  continues,  "  met  in  Convention  at  the  time 
appointed,  and  took  up  the  important  subject  before  them. 

1  Stevens'  Hist,  of  Geo.,  Vol.  II.  pp.  291,  292. 

2  Id.  pp.  296,  297. 


134  GEORGIA  CONVENTION  OP  1788. 

Much  other  business,  however,  pressed  upon  them,  consequent 
on  putting  the  State  in  a  proper  posture  of  defence  ;  but,  after 
one  or  two  adjournments,  they  accomplished  their  work,  and  on 
the  5th  of  February,  1777,  ratified  in  convention  the  first  Consti 
tution  of  the  State  of  Georgia."1 

From  this  account  of  the  first  Georgia  Convention,  it  is  evi 
dent  the  body  was  a  Revolutionary  Convention.  It  was  called 
in  an  irregular  manner,  by  proclamation  of  the  executive  head 
of  the  temporary  establishment,  and,  when  assembled,  it  entered 
upon  the  discharge  of  the  general  duties  of  a  government,  con 
cerning  itself  with  the  measures  necessary  for  "  putting  the  State 
in  a  proper  posture  of  defence."  In  this  course  of  administra 
tion  it  was  guided  only  by  its  own  discretion,  having  neither 
law  nor  Constitution  to  fetter  it.  A  body  thus  assembled,  and 
thus  charged  with  discretionary  powers,  cannot  be  a  Constitu 
tional  Convention,  strictly  so  called. 

§  148.  The  second  attempt  of  Georgia  to  supply  herself  with 
a  Constitution  was  made  with  greater  regularity. 

The  Federal  Convention,  having  submitted  to  the  States  the 
project  of  a  new  Constitution,  and  the  prospect  seeming  fair  that 
it  would  be  adopted,  in  order  to  bring  the  State  government  into 
harmonious  action  with  that  instrument,  as  well  as  to  remedy 
certain  defects  experienced  in  the  practical  working  of  the  State 
Constitution,  under  which  the  government  of  Georgia  had  been 
working  since  1777,  it  was  found  necessary  to  revise  the  latter, 
or  construct  a  new  one.  Accordingly,  on  the  30th  of  January, 
1788,  the  legislature  resolved,  "  that  they  would  proceed  to  name 
three  fit  and  discreet  persons  from  each  county,  to  be  convened 
at  Augusta  by  the  executive,  as  soon  as  may  be  after  official 
information  is  received  that  nine  States  have  adopted  the  Fed 
eral  Constitution  ;  and  a  majority  of  them  shall  proceed  to  take 
under  their  consideration  the  alterations  and  amendments  that 
are  necessary  to  be  made  in  the  Constitution  of  this  State,  and 
to  arrange,  digest,  and  alter  the  same  in  such  manner  as,  in 
their  judgment,  will  be  most  consistent  with  the  interest  and 
safety,  and  best  secure  the  rights  and  liberties  to  the  citizens 
thereof."  2 

On  the  6th  of  October,  1788,  the  official  letter  of  the  secre- 

1  Stevens'  Hist  of  Geo.,  Vol.  II.  pp.  297,  298. 

2  Id.  p.  388. 


TWO  GEORGIA   CONVENTIONS   OF   1789.  135 

tary  of  Congress,  stating  that  nine  States  had  accepted  the 
Constitution,  was  laid  before  the  executive  council;  and,  accord 
ingly,  Governor  Handley  called  the  members  nominated  and 
appointed  by  the  legislature  to  meet  at  Augusta  on  the  4th  of 
November,  "  in  order  to  carry  the  aforesaid  resolutions  of  the 
General  Assembly  into  execution."  1 

The  Convention  met  accordingly,  and  on  the  24th  of  Novem 
ber  agreed  to  and  signed  a  Constitution  to  be  proposed  for  adop 
tion  to  another  body,  created  by  a  resolution  of  the  General 
Assembly,  composed  of  three  persons  from  each  county,  chosen 
by  the  inhabitants  thereof  on  the  first  Tuesday  in  December, 
and  who  were  to  meet  at  Augusta  on  the  4th  of  January,  1789, 
"  vested  with  full  power,  and  for  the  sole  purpose  of  adopting 
and  ratifying  or  rejecting"  the  Constitution.2 

This  second  Convention  met  in  January,  and  proposed  certain 
alterations  of  the  form  laid  before  them.  These,  by  direction 
of  the  General  Assembly,  were  also  made  known  to  the  people ; 
and  Governor  Walton  was  directed  to  call  a  third  Convention 
"  to  adopt  the  said  original  plan  or  form  of  government,  with  or 
without  all  or  any  of  the  alterations  contained  and  expressed  in 
the  after-plan  of  January  last." 

This  Convention  met  on  the  4th  of  May,  1789,  considered  the 
several  articles  and  plans  before  them,  and  on  the  6th  of  the 
same  month  adopted  that  portion  of  them  known  as  the  second 
Constitution  of  Georgia.3 

§  149.  Though  the  series  of  acts  resulting  in  the  establish 
ment  of  the  second  Georgia  Constitution,  on  the  whole,  gives 
evidence  of  an  anxious  desire  on  the  part  of  the  public  authori 
ties  to  found  that  Constitution  on  the  people,  still  there  were 
anomalies  in  the  mode  of  calling  the  Convention  which  framed 
it,  that  indicate  great  ignorance  or  great  disregard  of  sound 
principles,  and  tend  to  throw  doubt  on  the  legitimacy  of  that 
body.  The  deputies  to  form  the  Convention  were,  in  effect,  but 
a  committee  of  the  legislature,  since,  at  the  time  of  calling  that 
body,  the  latter  proceeded  "  to  name  three  fit  and  discreet  per 
sons  from  each  county  "  to  constitute  the  Convention.  In  sub 
stance,  then,  it  was  the  legislature,  taking  upon  itself  the  work 
of  remodeling  the  Constitution,  from  which  it  derived  its  exist- 

1  Stevens'  Hist,  of  Geo.t  Vol.  II.  pp.  388,  389. 

2  Id.  p.  390.  3  Ibid. 


136  NEW  YORK  CONVENTION  OF  1776. 

ence  and  its  powers  —  a  blending  of  functions  which  is  never 
permissible  under  our  Constitutions,  and  which  has  the  sanction 
of  no  respectable  authority.  The  body  was,  therefore,  not  legiti 
mate  as  a  Constitutional  Convention. 

§  150.  Close  in  the  wake  of  Georgia  in  the  work  of  adopt 
ing  a  Constitution,  followed  New  York.  The  party  of  the  Revo 
lution  meeting  in  New  York  with  much  greater  opposition  than 
elsewhere,  that  colony  was  comparatively  tardy  in  adopting 
either  a  provisional  government  or  a  Constitution.  The  legisla 
ture,  from  a  variety  of  causes,  refusing,  in  the  spring  of  1776,  to 
elect  delegates  to  the  second  Congress  at  Philadelphia,  a  vote 
was  taken  throughout  the  city  of  New  York,  on  the  question 
of  sending  representatives  to  that  body,  when  there  appeared 
825  votes  for,  and  163  against  it.  After  this  indication  of  pub 
lic  sentiment,  the  rural  counties  cooperating  with  the  city,  a  Pro 
vincial  Congress  of  forty-one  delegates  met  on  the  20th  of  April, 
1776,  and  reflected  the  members  of  the  Continental  Congress. 
Other  Congresses  or  Conventions  of  a  similar  character  suc 
ceeded,  and  took  upon  themselves  the  government  of  the  colony. 
At  length,  on  the  31st  of  May,  1776,  the  one  then  in  session, 
after  premising,  in  terms  already  referred  to,  that  the  govern 
ment  by  Congress  and  committees  then  prevailing  in  the  col 
ony,  had  originally  been  designed  to  continue  only  until  a  recon 
ciliation  with  Great  Britain,  of  which  no  hope  any  longer 
existed ;  that  "  many  and  great  inconveniences  "  attended  "  the 
said  mode  of  government  by  Congress  and  committees,  as,  of 
necessity,  in  many  instances,  legislative,  judicial,  and  executive 
powers"  had  been  "vested  therein,  especially  since  the  dissolu 
tion  of  the  former  government;"  that  doubts  had  arisen  that 
Congress  were  invested  with  sufficient  power  and  authority  to 
deliberate  and  determine  on  so  important  a  subject  as  the  neces 
sity  of  erecting  and  constituting  a  new  form  of  government  and 
internal  police,  to  the  exclusion  of  all  foreign  jurisdiction,  do 
minion,  and  control  whatever ;  and,  finally,  declaring  that  it 
belonged  of  right  solely  to  the  people  of  the  colony  to  deter 
mine  the  said  doubts, 

"  Resolved,  That  it  be  recommended  to  the  electors  in  the 
several  counties  in  this  colony,  by  election  in  the  manner  and 
form  prescribed  for  the  election  of  the  present  Congress,  either 
to  authorize  (in  addition  to  the  power  vested  in  this  Congress) 


NEW  YORK  CONVENTION  OP  1776.  137 

their  present  deputies,  or  others  in  the  stead  of  their  present 
deputies,  or  either  of  them,  to  take  into  consideration  the 
necessity  and  propriety  of  instituting  such  new  government  as, 
in  and  by  the  said  resolution  of  the  Continental  Congress  is 
described  and  recommended ;  and  if  the  majorities  of  the  coun 
ties,  by  their  deputies  in  Provincial  Congress,  shall  be  of  opinion 
that  such  new  government  ought  to  be  instituted  and  estab 
lished,  then  to  institute  and  establish  such  a  government  as  they 
shall  deem  best  calculated  to  secure  the  rights,  liberties,  and 
happiness  of  the  good  people  of  this  colony,  and  to  continue  in 
force  until  a  future  peace  with  Great  Britain  shall  render  the 
same  unnecessary."  l  By  another  resolution,  the  Congress  rec 
ommended  the  mode  in  which  the  election  should  be  conducted, 
and  that  the  Convention  so  elected  should  assemble  on  the  sec 
ond  Monday  in  July,  1776. 

§  151.  In  pursuance  of  these  resolutions,  a  Convention  2  was 
elected,  which  met  at  White  Plains  on  the  9th  of  July,  1776. 
The  first  action  of  this  body  was  upon  the  Declaration  of  Inde 
pendence,  a  copy  of  which  had  been  received.  It  expressed  its 
concurrence  in  the  reasons  set  forth  in  the  recital  of  said  declara 
tion,  and,  adopting  that  instrument,  instructed  its  delegates  in 
Congress  to  use  their  best  efforts  to  obtain  the  objects  of  said 
declaration.  Soon  after  the  time  of  its  assembling,  the  condi 
tion  of  affairs  in  the  State  became  so  perilous,  on  account  of  the 
advance  of  the  enemy,  and  the  time  of  the  Convention  was  so 
much  taken  up  with  the  transaction  of  legislative  and  executive 
business,  that  it  made  but  little  progress  in  framing  a  Consti 
tution.  At  length,  however,  a  draft  of  a  Constitution  was  pre 
sented,  in  the  handwriting  of  Mr.  Jay,  on  the  12th  of  March, 
1777.  It  was  under  discussion  from  that  day  until  the  20th  of 
April,  1777,  when  it  was  adopted  with  but  one  dissenting  voice. 
After  its  adoption,  the  Convention  continued  in  session  until  the 
8th  of  May,  1777,  engaged  in  business  as  a  Council  of  Safety, 
and  adopting  ordinances  necessary  to  put  the  new  government 
in  operation. 

§  152.  The  instrument  thus  framed  was  at  that  time  generally 
regarded  as  the  most  excellent  of  all  the  American  Constitutions. 

1  Preamble  to  the  N.  Y.  Const,  of  1777. 

2  When  this  body  first  convened,  it  was  denominated  a  Congress,  but  it  after 
wards  adopted  the  title  of  Convention. 


138  VERMONT  CONVENTION  OF  1777. 

Mr.  Jay  took  a  leading  part  in  its  formation,  having,  it  is  said, 
left  Congress  to  attend  the  Convention  for  that  purpose.  The 
proceedings,  moreover,  which  resulted  in  its  adoption,  seem,  con 
sidering  the  circumstances  of  the  time,  to  have  been  so  ordered 
as  to  make  it  substantially  the  work  of  the  people.  But  the 
Convention  by  which  that  instrument  was  framed,  was  tainted 
by  the  vice  inherent  in  most  of  those  held  during  the  Revolu 
tionary  period ;  it  exercised,  by  usurpation  or  by  the  pretended 
grant  of  the  Provincial  Congress,  governmental  powers.  While 
occupied  in  framing  the  Constitution,  it  spent  much  of  its  time 
in  administrative  business,  and,  after  its  completion,  it  continued 
to  act,  as  above  stated,  as  a  Council  of  Safety,  adopting  the 
ordinances  necessary  to  put  the  new  government  in  operation. 
It  was,  therefore,  a  Revolutionary  Convention.1 

§  153.  The  position  of  the  State  of  Vermont,  during  the 
period  we  are  now  considering,  was  peculiar.  Engaged,  like  the 
thirteen  colonies  forming  the  Union,  in  a  war  with  Great  Brit 
ain,  in  behalf  of  "  the  continent,"  she  maintained,  at  the  same 
time,  a  spirited  contest,  on  her  own  account,  with  her  powerful 
neighbor,  New  York,  to  repel  what  she  deemed  unjust  territorial 
aggressions.  The  particulars  of  this  double  contest  it  is  unne 
cessary  to  rehearse.  It  is  sufficient  to  say  that  at  the  end  of  the 
war  with  Great  Britain,  Vermont  had  succeeded  in  establishing 
her  independence,  not  only  of  Great  Britain,  but  of  New  York, 
under  a  Constitution,  which,  in  most  of  its  important  features, 
has  remained  unchanged  to  this  day.  The  first  step  in  this 
course  was  to  call  a  Convention  to  pass  upon  the  question  of 
Independence,  in  imitation  of  the  Continental  Congress  acting 
for  the  thirteen  colonies.  Circular  letters  were  addressed  by 
some  of  the  most  influential  persons  to  the  different  towns,  in 
pursuance  of  which  delegates  were  appointed  to  a  Convention, 
which  met  at  Dorset,  on  the  24th  of  July,  1776.  By  different 
adjournments,  a  decision  of  the  question  was  postponed  until 
January,  1777,  when  the  Convention  again  assembled  at  West 
minster,  and  declared  the  New  Hampshire  Grants,  for  thus  was 
Vermont  then  styled,  a  free  and  independent  State.  The  Con 
vention  then  adjourned,  to  meet  again  at  Windsor,  in  the  fol 
lowing  June.  The  little  State,  thus  boldly  claiming  for  herself 

1  For  an  account  of  the  proceedings  of  the  first  New  York  Convention,  see 
Deb.  of  the  N.  Y.  Conv.,  1821,  Appendix,  pp.  691-696. 


VERMONT   CONSTITUTION   OF   1777.  139 

a  position  among  the  nations  of  the  earth,  at  once  became  an 
object  of  general  attention.  That  New  York  would  not  readily 
acquiesce  in  her  pretensions  was  certain,  and  it  was  very  doubt 
ful  whether  the  Congress  would  recognize  her  independent  char 
acter,  much  less  admit  her  into  the  Union.  At  this  juncture,  a 
citizen  of  Philadelphia,  Thomas  Young,  a  prominent  Democrat, 
and  an  experienced  Constitution-maker,1  published  an  address, 
urging  the  people  of  Vermont  to  maintain  the  ground  they  had 
taken,  assuring  them  that  he  had  taken  the  minds  of  the  leading 
members  of  Congress,  and  that  all  they  had  to  do  was  to  "  send 
attested  copies  of  the  recommendation "  of  the  Congress,  "  to 
take  up  government,  to  every  township  ....  and  invite  all  free 
holders  and  inhabitants  to  meet  in  their  respective  townships 
and  choose  members  for  a  general  Convention,  to  meet  at  an 
early  day,  to  choose  delegates  for  the  general  Congress,  a  Com 
mittee  of  Safety,  and  to  form  a  Constitution."2  This  address 
was  dated  the  llth  of  April,  1777.  At  the  adjourned  session  of 
the  Convention,  therefore,  in  June,  1777,  in  pursuance  of  this 
advice  and  of  the  recommendation  of  the  Congress,  that  body 
appointed  a  committee  to  draft  a  Constitution,  and  then,  by 
resolution,  recommended  the  people  to  elect  delegates,  in  their 
several  towns,  to  meet  in  convention,  at  Windsor,  on  the  2d  of 
July  following,  to  pass  upon  the  draft  prepared  by  the  committee. 
Delegates  were  accordingly  elected,  who  met  on  the  day  named, 
and  afterwards  adjourning,  and  coming  together  in  December, 
adopted  and  put  in  operation  the  first  Vermont  Constitution.3 

§  154.  For  a  Convention  called  by  a  people  in  a  condition 
so  thoroughly  revolutionary  as  that  of  Vermont,  it  is  doubtful 
whether  more  of  the  elements  of  regularity  could  be  expected 
than  are  here  exhibited.  Still,  it  was  a  Revolutionary  Conven 
tion,  that  is,  one  exercising,  beside  the  special  function  of  a  Con 
stitutional  Convention,  the  high  powers  of  a  Council  of  Safety, 
which  were  thoroughly  despotic  and  of  every  variety  wielded 
by  any  government  whatever,  so  far  as  deemed  by  itself  to  be 
necessary.  Moreover,  the  Constitution  framed  by  the  Conven 
tion  was  not  submitted  to  the  people  for  ratification.  Though 

1  The  marked  similarity  of  the  first  Vermont  Constitution  to  the  first  Consti 
tution  of  Pennsylvania,  was  doubtless  owing  to  him. 

2  Williams'  Hist.  Vt.,  p.  75. 

3  Id.  p.  79. 


140        VERMONT  CONVENTIONS  OF  1785  AND  1786. 

the  necessity  of  submitting  it  for  that  purpose  was  not  denied, 
it  was  deemed  unsafe  to  do  so,  on  account  of  the  perils  then 
surrounding  the  State,  as  well  from  foreign  as  domestic  enemies. 
But  the  failure  to  base  the  new  government  on  the  people,  awak 
ened  a  general  distrust  as  to  its  validity.  Objection  was  made 
to  it,  that  the  credentials  of  the  delegates  to  the  Convention 
authorized  them  to  form  a  Constitution,  but  were  silent  as  to 
its  ratification  by  them,  arid  that  it  never  was  submitted  to  the 
people  for  ratification  or  rejection.1  Attempts  were  made,  on 
several  occasions,  to  remedy  this  defect,  and  the  mode  in  which 
this  was  sought  to  be  done,  marks  the  immaturity  of  the  views 
prevalent  at  that  time  in  regard  to  the  proper  method  of  effect 
ing  constitutional  changes.  The  legislature  of  the  State,  at  its 
session  in  February,  1779,  passed  an  Act  declaring,  that  the 
Constitution,  "  as  established  by  general  Convention,  held  at 
Windsor  in  July  and  December,  1777,  together  with  and  agree 
able  to  such  alterations  and  additions,"  as  should  be  made  in 
pursuance  of  its  provisions,  should  "  be  forever  considered,  held, 
and  maintained,  as  part  of  the  laws  of  the  State."  2  Not  con 
tent  with  this,  the  same  body,  at  a  subsequent  session,  held  in 
1782,  passed  another  Act  in  similar  terms,  for  the  same  purpose, 
which,  by  the  preamble,  was  declared  to  be  "  to  prevent  disputes 
respecting  the  legal  force  of  the  Constitution  of  this  State."  3 

§  155.  In  1786,  a  revision  was  made  of  the  first  Vermont 
Constitution,  by  a  Convention  called  for  that  express  and  only 
purpose.  By  the  44th  section  of  that  instrument,  provision  had 
been  made  for  the  appointment,  in  1785,  and  at  the  end  of  every 
seven  years  thereafter,  of  a  Council  of  Censors,  whose  duty  it 
should  be,  with  other  things,  to  call,  by  a  vote  of  two-thirds  of 
its  members,  a  Convention  to  amend  the  Constitution,  "  if  there 
should  appear  to  them  an  absolute  necessity  of  so  doing."  By 
a  subsequent  clause,  all  amendments  were  to  be  proposed  by 
the  Council  of  Censors,  and  the  Convention  were  merely  to 
pass  upon  them  ;  and,  to  make  it  certain  that  the  changes,  if 
any,  should  be  substantially  the  work  of  the  people,  the  Coun 
cil  were  required  to  publish  the  articles  to  be  amended,  and  the 
proposed  amendments  thereto,  at  least  six  months  before  the 

1  Slade's  State  Papers,  p.  240,  note,  referring  to  Allen's  Hist.  Vt. 

2  Act  of  February  11,  1779.     See  Slade's  State  Papers,  p.  288,  note. 

3  Act  passed  in  June,  1782.     See  Slade's  State  Papers,  p.  449. 


MASSACHUSETTS   CONVENTION   OP   1778.  141 

day  appointed  for  the  election  of  the  Convention,  "for  the  con 
sideration  of  the  people,  that  they  may  have  an  opportunity  of 
instructing  their  delegates  on  the  subject." 

Under  this  system,  copied  from  that  of  Pennsylvania,  Coun 
cils  of  Censors  have  been  chosen  every  seven  years  down  to  the 
present  time.  That  Council  which  held  its  session  in  1785-86, 
called  a  Convention,  to  meet  in  June  of  the  latter  year,  by  which 
the  Constitution  was  revised  and  published  as  the  Constitution 
of  1786.  Though  differing  from  the  Conventions  of  any  other 
State  in  the  Union,  as  to  the  extent  and  nature  of  their  func 
tions,  those  of  Vermont,  excepting  her  first,  must  be  conceded 
to  be,  in  their  origin,  at  least,  legitimate.  Whether  the  facts, 
that  they  have  received  the  amendments,  upon  which  they 
have  deliberated,  from  the  Councils  which  called  them,  and 
that  they  have  been  required  by  the  Constitution  to  pass  upon 
those  amendments  definitively,  distinguish  them  essentially  from 
Constitutional  Conventions,  may  be  the  subject  of  some  doubt. 
Probably,  the  correct  view  to  take  of  them  is  to  regard  them  as 
Constitutional  Conventions,  exercising  extraordinary  powers, 
not  by  usurpation,  as  did  their  prototype,  the  Revolutionary  Con 
vention  of  1777,  but  by  virtue  of  special  constitutional  provision 
—  in  which  view  it  would  be  impossible  to  deny  to  them  regu 
larity  and  legality.1 

§  156.  The  latest  of  all  the  original  States  of  the  Union  to 
frame  a  Constitution,  was  Massachusetts.  We  have  seen,  that 
as  early  as  May,  1775,  the  Provincial  Convention  of  that  State, 
on  the  withdrawal  of  her  charter,  had  applied  to  the  Congress 
at  Philadelphia,  for  advice  respecting  the  proper  exercise  of  the 
powers  of  government  in  that  colony.  In  answer,  the  Congress 
had  recommended  the  election  of  representatives  by  the  several 
towns,  to  form  a  General  Court,  which  was  to  meet  and  choose 
councilors,  and  had  added  the  wish  that  those  bodies  should 
exercise  the  powers  of  government  until  a  governor  of  the  King's 
appointment  would  consent  to  govern  the  colony  according  to 
its  charter.  The  arrangement  thus  recommended,  which  was 
provisional  and  temporary,  was  made,  but  no  written  Constitu 
tion  was  drawn  up.  For  reasons  set  forth  in  the  cases  of  the 
other  colonies,  this  establishment  proving  unsatisfactory,  in  Sep 
tember,  1776,  the  Massachusetts  Assembly  voted  to  take  steps 
1  See  post,  §  220,  and  note. 


142  MASSACHUSETTS   CONVENTION   OP   1779. 

toward  "  the  framing  of  a  form  of  government."  Accordingly, 
on  the  5th  of  May  following,  the  same  body  recommended  to 
the  people  to  authorize  their  representatives  to,  the  General  As 
sembly  next  to  be  chosen,  to  form  a  Constitution,  to  be  submitted 
to  them  for  adoption  or  rejection,  and,  if  approved  by  a  two-thirds 
vote  of  the  people,  to  be  put  in  force  by  the  General  Assembly. 
On  the  28th  of  February,  1778,  the  succeeding  General  Assem 
bly,  sitting  as  a  Convention,  agreed  upon  a  Constitution,  in  the 
preamble  to  which,  referring  to  the  resolution  of  the  5th  of  May 
preceding,  they  recited  that  their  constituents  had  instructed 
them  "  in  one  body  with  the  Council,"  to  form  such  a  Constitu 
tion  as  they  should  judge  best  calculated  to  promote  the  happi 
ness  of  the  State.  This  Constitution,  being  submitted  to  the 
people  at  town-meetings  held  throughout  the  State,  was,  by  the 
large  majority  of  five  to  one,  rejected.  The  reasons  for  this 
rejection  were  twofold  :  first,  what  were  thought  to  be  defects 
in  the  instrument  itself;  and,  secondly,  dissatisfaction  on  account 
of  "  the  anomalous  nature  of  the  body  by  which  it  had  been 
framed."  l  The  anomaly,  doubtless,  consisted  in  its  double  char 
acter  of  Assembly  and  Convention,  which  the  people  had  the 
good  sense  to  recognize  as  of  dangerous  tendency.  It  must, 
moreover,  have  been  doubtful  whether  it  was  the  sense  of  the 
people  that  the  Assembly  should  assume  to  meddle  with  the 
fundamental  law,  since  it  does  not  appear  that  a  regular  vote 
was  taken  throughout  the  State,  by  the  returns  of  which  it  could 
have  been  determined,  with  certainty,  on  which  side  of  the  ques 
tion  was  cast  a  majority  of  votes. 

§  157.  The  next  attempt  to  frame  a  Constitution  for  the  State 
was  more  successful.  The  General  Court,  as  the  legislature 
was  called,  on  the  20th  of  February,  1779,  directed  the  select 
men  of  the  several  towns  to  cause  the  freeholders  and  other 
inhabitants  in  their  respective  towns,  duly  qualified  to  vote  for 
representatives,  to  be  lawfully  warned  to  meet  together  in  some 
convenient  place  therein,  on  or  before  the  last  Wednesday  of 
May  following,  to  consider  of  and  determine  upon  the  following 
questions  :  —  first,  whether  they  chose,  at  that  time,  to  have  a 
Constitution,  or  form  of  government  made  ;  secondly,  whether 
they  would  empower  their  representatives  for  the  next  year  to 
vote  for  the  calling  a  State  Convention,  for  the  sole  purpose 
1  Proceedings  of  the  Mass.  Conv.  of  1820,  p.  vi.,  note. 


MASSACHUSETTS   CONVENTION   OP   1779.  143 

of  forming  a  Constitution,  provided  it  should  appear  to  them, 
on  examination,  that  a  major  part  of  the  people,  present  and 
voting  at  the  meetings  called  in  the  manner  and  for.  the  purpose 
aforesaid,  should  have  answered  the  first  question  in  the  affirma 
tive.1 

The  people  assented  to  both  of  these  propositions  by  large 
majorities.  Accordingly,  the  General  Court,  by  a  resolution 
passed  June  17,  1779,  provided  for  the  election  of  delegates  to 
a  Convention,  to  meet  on  the  first  of  September  following.2 
The  delegates  elected  under  this  resolution,  assembled  on  the 
day  appointed,  and  chose  a  committee  of  thirty  to  prepare  a 
Constitution  and  Declaration  of  Rights,  and  adjourned  over  to 
the  28th  of  October.  The  committee  delegated  to  John  Adams, 
one  of  their  number,  the  task  of  preparing  the  Declaration  of 
Rights,  and  to  him,  with  James  Bowdoin  and  Samuel  Adams, 
that  of  drafting  the  Constitution.  At  the  adjourned  session 
commencing  October  28th,  the  Committee  presented  their  draft, 
which,  af+—  :CvIU  discussion,  and  several  adjournments  for  the 
purpose  of  securing  a  full  attendance  of  the  members,  was 
adopted  by  the  Convention,  March  2,  1780.  The  Convention 
then  adjourned  again  to  the  first  Wednesday  of  June,  1780, 
having  first  made  provision  for  taking  the  sense  of  the  people 
upon  the  Constitution,  and  adopted  an  address  to  them  explain 
ing  the  principles  of  that  instrument.  On  the  7th  of  June, 
1780,  the  Convention  reassembled,  and,  it  appearing  that  the 
whole  Constitution  had  been  approved  by  the  people,  by  more 
than  a  two-thirds  vote,  declared,  June  16,  1780,  "  the  said  form 
to  be  the  Constitution  established  by  and  for  the  inhabitants  of 
the  State  of  Massachusetts  Bay." 

§  158.  Such  was  the  jealousy  exhibited  by  the  people  of  Mas 
sachusetts,  of  the  unauthorized  interference  of  any  body  of  men 
with  their  appropriate  function  of  establishing  the  fundamental 
law.  Being  the  latest  of  all  the  original  thirteen  States  to 
engage  in  the  work  of  Constitution-making,  Massachusetts  pos 
sessed  the  great  advantage  of  being  able  to  profit  by  the  exam 
ple  of  her  sister-colonies,  to  adopt  their  improvements,  and  avoid 
their  mistakes.  She  had  also  the  benefit  of  the  enlightened 
counsels  of  John  and  Samuel  Adams,  the  former  of  whom  is 

1  Journal  of  the  Mass.  Com?,  of  1779-80,  Appendix,  No.  1. 

2  Proceedings  of  Mass.  Conv.  of  1820,  p.  vi.,  note. 


144  FIRST   FEDERAL    CONVENTION. 

entitled  to  rank  as  the  father  of  the  American  system  of  govern 
ments,  considering  as  well  their  peculiar  adjustments  of  power, 
as  the  modes  and  processes  by  which  they  are  built  up.  From 
the  first  essay,  made  by  New  Hampshire,  in  January,  1776,  it  is 
evident  a  great  advance  had  been  made  in  all  respects  during 
the  four  years  ending  with  the  adoption  of  the  first  Constitution 
of  Massachusetts.  At  first,  the  people  had  very  inadequate  no 
tions  of  the  true  methods  of  fundamental  legislation.  Having 
only  the  examples  of  their  forefathers  in  England,  in  1660  and 
1688,  with  a  few  contemporaneous  imitations  in  the  colonies, 
they  were  convinced  the  work,  in  their  then  revolutionary  con 
dition,  must  be  initiated  by  Conventions,  but  under  what  condi 
tions  and  limitations,  they  seem  to  have  been  wholly  ignorant. 
By  degrees,  however,  they  came  to  realize  what  John  Adams 
had  taught  them  in  May,  1775,  that  it  was  necessary  "  that  the 
people  should  erect  the  whole  building  with  their  own  hands," 
and  to  that  end,  that  the  Conventions  called  by  them  should  be 
limited  to  the  single  function  of  proposing  constitutional  enact 
ments,  leaving  it  to  the  electors  by  their  fiat,  pronounced  through 
the  ballot-box,  to  give  to  them  the  force  and  vigor  of  law.  It 
is  hardly  necessary  to  observe,  that  the  proceedings  by  which 
the  Massachusetts  Convention  of  1779  was  called,  and  by  which 
its  work  was  matured  and  confirmed  by  the  final  vote  of  the 
people,  were  strictly  regular,  and  that,  therefore,  the  body  was 
legitimate  as  a  Constitutional  Convention.1 

§  159.  There  remain  now  to  be  considered  those  conventions 
of  the  revolutionary  period,  by  which  were  framed  and  ratified 
the  two  Constitutions  of  the  United  States. 

We  have  seen  that,  upon  the  breaking  out  of  hostilities  with 
Great  Britain,  the  several  colonies,  except  Connecticut  and 
Rhode  Island,  established  temporary  governments,  by  means 
of  Provincial  Conventions  or  Congresses,  operating  in  the  main 
through  committees,  and  exercising  unlimited  powers.  In  tak 
ing  this  step,  they  imitated  the  example  set  them  by  United 
America,  in  establishing  a  government  for  the  continent  by  the 
Congress  at  Philadelphia.  The  contest  with  Great  Britain  had 
been  opened,  and,  so  long  as  the  body  existed,  was  conducted 

l  For  a  full  and  most  excellent  account  of  the  proceedings  resulting  in  the 
•framing  of  the  first  Massachusetts  Constitution,  see  Works  of  John  Adams,  Vol. 
IV.  pp.  213-218. 


FIRST   FEDERAL    CONVENTION.  145 

by  the  Revolutionary  Congress,  which  met  at  Philadelphia  on' 
the  5th  of  September,  1774.  When  that  body  expired,  there 
succeeded  to  its  place  and  office  the  Congress  which  met  at  the 
same  city  on  the  10th  of  May,  1775.  To  the  revolutionary 
government  administered  by  these  two  bodies,  belonged  all  the 
powers  needed  for  the  successful  prosecution  of  the  war.  As 
those  powers,  however,  grew  out  of  necessity,  and  not  out  of 
an  express  grant,  it  was  found  difficult  to  secure  acquiescence 
in  their  exercise,  except  when  the  separate  colonies  were  made 
tractable  by  imminent  public  dangers.  To  remedy  this  evil,  it 
was  early  proposed  to  frame  articles  which  should  not  only  make 
the  union  of  the  colonies  perpetual,  but  so  ascertain  the  powers 
intrusted  to  the  central  government  by  written  memorials,  that 
cavil  and  disobedience  should  be  prevented.  According  to  Mr. 
Madison,  there  remains  on  the  files  of  Congress,  in  the  hand 
writing  of  Dr.  Franklin,  a  sketch  of  such  articles,  submitted  by 
him  to  that  body,  as  early  as  the  21st  of  August,  1775,  entitled, 
"  Articles  of  Confederation  and  Perpetual  Union  of  the  Colo 
nies."  But  this  attempt  was  premature,  and  nothing  came  of 
it.  When  Congress,  in  1776,  appointed  a  committee  to  draft  a  i> 
Declaration  of  Independence,  it  appointed  at  the  same  time 
another  to  prepare  a  plan  of  a  confederation  for  the  Colonies. 
The  committee  reported  a  plan,  on  the  12th  of  July,  1776,  based 
on  that  sketched  by  Dr.  Franklin,  which  was  debated  and 
amended  from  time  to  time  until  the  15th  of  November,  1777, 
when  the  Congress  passed  it  and  agreed  to  propose  it  to  the 
States.  This  plan,  entitled  "  Articles  of  Confederation  and 
Perpetual  Union  between  the  States  of  New  Hampshire,"  &c., 
&c.,  was  finally  ratified  by  the  legislatures  of  the  several  States, 
but  only  after  long  delay,  the  date  of  the  earliest  ratification 
being  the  9th  of  July,  1778,  and  that  of  the  latest,  the  1st  of  - 
March,  1781. 

§  160.  Thus  was  effected,  for  the  United  States,  the  transition 
from  a  revolutionary  condition,  under  a  provisional  government, 
to  one  that  was,  in  idea,  at  least,  fixed  and  permanent,  under  a 
written  Constitution.  The  body  by  which  this  Constitution  was 
framed,  the  Continental  Congress,  I  have  classed  with  Consti 
tutional  Conventions,  but  in  strictness  that  classification  is 
incorrect.  That  Congress  was  a  revolutionary  government, 
charged  by  the  patriotic  majority  in  the  several  colonies  to  see 
10 


146  FIRST   FEDERAL   CONVENTION. 

to  it  that  the  interests  of  United  America  received  no  detri 
ment.  For  that  purpose  its  powers  were  undoubtedly  ample, 
but  they  did  not  extend  to  the  framing  of  a  fundamental  law; 
at  least,  the  credentials  of  its  members  contemplated — and, 
considering  the  time  when  they  were  drawn  up,  could  have  con 
templated —  no  such  special  function  for  that  body,  unless  the 
framing  of  a  Constitution  should  be  thought  to  be  among  the 
proper  means  of  discharging  adequately  the  trust  committed  to 
it.  Whatever  force  or  validity  those  articles  derived  from  the 
Congress,  sprang  solely  from  their  excellence  as  propositions  to 
be  acted  on  by  the  several  States,  or  from  the  force  wielded  by 
their  proposers  as  a  revolutionary  government.  They  were  oblig 
atory  upon  no  one,  and,  in  fact,  it  was  less  the  weight  of  the 
Congress  than  the  urgent  perils  of  the  times  that  led  to  their 
final  adoption  by  the  States.  Their  real  validity,  as  a  Consti 
tution  for  America,  depended  solely  upon  the  ratification  so 
tardily  given  by  the  constituent  commonwealths. 

§  161.  The  mode  in  which  the  ratification  of  the  Articles  of 
Confederation  was  effected,  is  deserving  of  notice,  as  bearing 
on  the  question  of  the  legitimacy  of  that  Constitution.  It  was 
ratified  by  the  States,  and  not  by  the  citizens  of  the  several 
States  or  of  the  Union.  It  was  by  the  States,  speaking  through 
their  respective  legislative  assemblies.  In  one  aspect  of  the  case, 
this  mode  of  ratifying  those  articles  was  the  proper  one,  for  the 
Confederation  was  a  league  of  distinct  commonwealths,  struck 
by  their  ambassadors,  and,  therefore,  to  derive  its  force  only  from 
those  whom  the  ambassadors  represented.  These  being  States, 
it  was  they  alone  that  could  dictate  the  terms  upon  which  their 
union  should  subsist.  The  Constitution  of  the  Confederation, 
therefore,  when  ratified  in  the  manner  explained,  was  an  entirely 
legitimate  one ;  that  is,  it  was  proposed  to  the  constituent  bodies 
it)  be  governed  by  it,  and  by  the  latter  ratified  and  confirmed  by 
an  express  vote;  but  it  was  legitimate  only  for  what  it  purported 
to  be  —  a  league  between  States,  and  not  a  national  Constitution, 
in  the  proper  sense  of  the  term.  Tested  by  the  principles  that 
should  preside  over  the  formation  of  a  Constitution,  it  was,  in 
its  inception,  not  legitimate,  for  it  wanted  the  sanction  of  the 
people,  who,  as  distinct  from  their  governments,  are  alone  the 
constituents,  or  have  power  to  ratify  a  Constitution. 

The  Congress,  on  the  other  hand,  considered  as  a  Constitu- 


FIRST   FEDERAL    CONVENTION.  147 

tional  Convention,  possessed  not  a  single  one  of  the  elements 
necessary  to  give  it  legitimacy.  The  people  had  no  direct  agency 
in  calling  it,  no  voice  in  prescribing  its  duties  or  ascertaining  its 
powers,  and  were  not  directly  consulted  in  the  act  of  putting 
the  fruit  of  its  deliberations  in  force. 

§  162.  Such  was  the  first  essay  of  our  fathers  in  framing  a 
government  for  United  America.  The  system  resulting  from  it, 
the  joint  product  of  inexperience  and  State  jealousy,  came  soon 
to  merit  the  general  contempt  from  its  weakness.  The  govern 
ment  of  the  Confederation,  from  its  peculiar  character  as  a 
league  between  States,  needed,  more  than  one  which  should 
deal  immediately  with  individuals,  to  be  strong  enough  to  make 
itself  either  respected  or  feared.  But  it  failed  to  secure  either 
fear  or  respect.  With  considerable  legislative  power,  it  had  no 
distinctively  judicial,  and  next  to  no  executive,  power.  It  pre 
sented  the  anomaly  of  a  government  for  an  immense  expanse 
of  country,  empowered  to  enact  laws,  but  invested  with  scarcely 
any  power  of  enforcing  them.  The  disordered  state  of  the 
finances,  which  it  was  utterly  unable  to  remedy,  was  the  proxi 
mate  cause  of  its  collapse.  The  requisitions  for  the  support  of 
the  government  were  first  paid  by  a  few  of  the  States,  the 
rest  contributing  nothing,  and  then  disregarded  by  all  alike.1 
But,  had  it  been  the  destiny  of  the  United  States  to  tide  over 
the  financial  difficulties  growing  out  of  the  war,  a  state  of  peace 
and  prosperity  would  have  demonstrated,  more  strikingly  than 
one  of  financial  distress,  the  utter  inadequacy  of  its  Constitution 
of  government.  There  is  scarcely  a  function  of  a  good  gov 
ernment  in  which  it  would  not  have  proved  itself  altogether 
wanting. 

§  163.  The  immediate  occasion  of  the  steps  which  finally  led 
to  the  supersession  of  this  worthless  fabric  by  a  real  Constitution, 
grew  out  of  the  absolute  necessity  of  filling  the  national  coffers. 
In  1781,  and  on  several  subsequent  occasions,  serious  efforts  had 
been  made  to  induce  the  States  to  vest  in  Congress  power  to 
levy  imposts  on  imported  goods,  for  the  purpose  of  raising  the 
necessary  public  revenue.  But  they  had  all  been  vain.  At 

1  Attorney-General  Randolph,  in  arguing  before  the  Supreme  Court  of  the 
United  States  the  case  of  Chisholm's  Executors  vs.  The  State  of  Georgia,  wit 
tily  characterized  the  Confederation,  in  view  of  the  facts  stated  in  the  text,  as 
"  a  government  of  supplication."  2  Dall.  R.  419. 


148  ANNAPOLIS   CONVENTION. 

length,  on  the  21st  of  January,  1786,  the  House  of  Delegates  of 
Virginia  appointed  eight  commissioners,  to  meet  such  others  as 
might  be  appointed  by  the  other  States,  at  a  time  and  place  to 
be  agreed  upon,  with  instructions  "  to  take  into  consideration 
the  trade  of  the  United  States  ...  .to  consider  how  far  a  uni 
form  system  in  their  commercial  regulations  may  be  necessary  ; 
and  to  report  to  the  several  States  such  an  Act  relative  to  this 
great  subject,  as,  when  unanimously  ratified  by  them,  will  ena 
ble  the  United  States  in  Congress  assembled  effectually  to  pro 
vide  for  the  same  ;  that  the  said  commissioners  shall  immediately 
transmit  to  the  several  States  copies  of  the  preceding  resolution, 
with  a  circular  letter  requesting  their  concurrence  therein,  and 
proposing  a  time  and  place  for  the  meeting  aforesaid."  1 

This  resolution  was  the  origin  of  what  is  known  as  the  Annap 
olis  Convention  ;  the  instructions  to  the  Virginia  commissioners 
being  carried  out  by  them  and  delegates,  according  to  their  invita 
tion,  assembling  from  several  of  the  States  at  Annapolis,  the 
place  named  for  the  purpose  by  the  commissioners.  Toward  the 
object  for  which  it  was  assembled,  the  Annapolis  Convention  did 
nothing  directly,  only  five  of  the  States  responding  to  the  call ; 
but  it  gave  expression  to  its  "  unanimous  wish,  that  speedy 
measures  may  be  taken  to  effect  a  general  meeting  of  the  States 
in  a  future  Convention,  for  the  same  and  such  other  purposes  as 
the  situation  of  public  affairs  may  be  found  to  require."  The 
delegates  then  stated  that,  in  their  opinion,  "  the  idea  of  extend 
ing  the  powers  of  their  deputies  to  other  objects  than  those  of 
commerce,  which  has  been  adopted  by  the  State  of  New  Jersey,2 
was  an  improvement  on  the  original  plan,  and  will  deserve  to 
be  incorporated  into  that  of  a  future  Convention."  They  fur 
ther  recommended  "  a  Convention  of  deputies  from  the  different 
States,  for  the  special  and  sole  purpose  of  entering  into  this 
inquiry,  and  digesting  a  plan  for  supplying  such  defects  as  may 
be  discovered  to  exist ; "  and  that  the  Convention  meet  on  the  2d 
Monday  in  May,  1787,  at  Philadelphia,  "  to  take  into  considera 
tion  the  situation  of  the  United  States,  to  devise  such  further 
provisions  as  shall  appear  to  them  necessary  to  render  the  Con- 

1  Ell.  Deb.,  Vol.  I.  pp.  93-100. 

2  New  Jersey  had  instructed  her  delegates  to  the  Annapolis  Convention  "  to 
consider  how  far  a  uniform  system  in  their  commercial  regulations  and  other  impor 
tant  matters  might  be  necessary." 


RECOMMENDATIONS   OP   THE   ANNAPOLIS   CONVENTION.          149 

stitution  of  the  Federal  government  adequate  to  the  exigencies 
of  the  Union,  and  to  report  such  an  act  for  that  purpose  to  the 
United  States  in  Congress  assembled,  as,  wnen  agreed  to  by 
them,  and  afterwards  confirmed  by  the  legislatures  of  every 
State,  will  effectually  provide  for  the  same." 

Having  published  the  above  recommendations,  the  Conven 
tion  adjourned,  September  14,  1786. 

§  164.  The  two  documents  mentioned  in  the  last  section  — 
the  instructions  to  the  Virginia  delegates  and  the  recommenda 
tions  of  the  Annapolis  Convention — evidently  contemplated  noth 
ing  more  than  an  amendment  of  the  Articles  of  Confederation, 
in  the  main  according  to  the  mode  pointed  out  by  the  thirteenth 
of  those  Articles.  The  course  of  action  recommended  by  the 
first,  however,  involved  a  variation  from  that  mode  in  one  par 
ticular  not  contained  in  the  second,  namely,  in  that  it  required 
the  act  relative  to  trade  regulations,  which  the  commissioners 
might  mature,  to  be  reported  "  to  the  several  States,"  and  to  take 
effect  "  when  unanimously  ratified  by  them."  The  Annapolis 
Convention,  on  the  other  hand,  recommended  that  the  Conven 
tion  to  meet  at  Philadelphia  in  May  following,  should  "  report 
such  an  Act"  in  regard  to  the  interests  of  the  Union,  therein 
mentioned,  "  to  the  United  States,  in  Congress  assembled,  as, 
when  agreed  to  by  them  and  afterwards  confirmed  by  the  legis 
latures  of  every  State,"  would  "  effectually  provide  for  the  same." 
In  other  words,  the  Virginia  instructions  proposed  to  amend  the 
Articles  of  Confederation  by  referring  the  new  or  additional  Arti 
cles  to  only  one  of  the  sources  of  authority  prescribed  by  the 
Articles  themselves,  that  is,  to  the  States,  omitting  "  the  Con 
gress  of  the  United  States,"  which  body,  by  the  13th  Article, 
was  first  to  agree  upon  them.  In  this  respect,  the  recommenda 
tions  of  the  Annapolis  Convention  are  free  from  objection,  since 
the  course  pointed  out  by  that  body  for  securing  amendments 
to  the  Articles  was  in  scrupulous  conformity  to  the  13th  Article, 
except  that  they  went  further  than  the  latter  in  proposing  to  call 
a  Convention  to  frame  such  amendments  in  the  first  instance  — 
a  step  not  provided  for  in  the  13th  Article.  Indeed,  that  Article 
contained  no  indication  of  the  persons  by  whom  amendments 
to  the  Articles  should  or  should  not  be  suggested  or  proposed, 
but  required  only  that  they  should  be  agreed  to  and  confirmed 
in  a  particular  manner,  that  is,  first,  by  the  Congress,  and  then 
by  the  State  legislatures. 


150  SECOND  FEDERAL  CONVENTION. 

§  165.  From  these  seeds  sprang  the  Federal  Convention  of 
1787,  by  which  was  framed  the  present  Constitution  of  the 
United  States. 

The  recommendations  of  the  Annapolis  Convention  having 
been  communicated  by  letter  to  Congress,  that  body,  on  the 
21st  of  February,  1787,  passed  the  following  preamble  and  reso 
lution  :  — 

"  Whereas,  there  is  provision  in  the  Articles  of  Confederation 
and  Perpetual  Union  for  making  alterations  therein,  by  the 
assent  of  a  Congress  of  the  United  States  and  of  the  legisla 
tures  of  the  several  States ;  and,  whereas,  experience  hath  evinced 
that  there  are  defects  in  the  present  Confederation,  as  a  means 
to  remedy  which  several  of  the  States,  and  particularly  the  State 
of  New  York,  by  express  instructions  to  their  delegates  in  Con 
gress,  have  suggested  a  Convention  for  the  purposes  expressed 
in  the  following  resolution ;  and  such  Convention  appearing  to 
be  the  most  probable  means  of  establishing  in  these  States  a 
firm  national  government,  — 

"  Resolved,  That,  in  the  opinion  of  Congress,  it  is  expedient 
that,  on  the  2d  Monday  in  May  next,  a  Convention  of  delegates, 
who  shall  have  been  appointed  by  the  several  States,  be  held  at 
Philadelphia,  for  the  sole  and  express  purpose  of  revising  the 
Articles  of  Confederation,  and  reporting  to  Congress  and  the 
several  legislatures  such  alterations  and  provisions  therein  as 
shall,  when  agreed  to  in  Congress  and  confirmed  by  the  States, 
render  the  Federal  Constitution  adequate  to  the  exigencies  of 
government  and  the  preservation  of  the  Union."  1 

In  pursuance  of  this  resolution,  delegates  were  chosen  and 
met  at  Philadelphia  on  the  day  appointed,  and  by  them  was 
matured,  in  a  session  of  something  over  four  months,  the  pres 
ent  Constitution  of  the  United  States.  The  first  State  to  act 
upon  the  resolution  was  Virginia,  whom  all  the  other  twelve 
States  followed  in  the  course  of  a  few  months,  and  before  the 
assembling  of  the  Convention,  except  New  Hampshire,  Con 
necticut,  and  Maryland,  whose  delegates  were  appointed  and 
accredited  after  that  body  had  been  organized  at  Philadelphia. 

§  166.  The  question  as  to  the  legitimacy  of  the  Federal  Con 
vention,  in  the  sense  in  which  I  have  defined  that  term,2  is  not 
a  difficult  one  to  answer. 

1  Ell.  Deb.,  Vol.  I.  pp.  119,  120. 

2  See  §§  105-108,  ante. 


SECOND  FEDERAL  CONVENTION.  151 

There  being,  as  I  have  shown,  in  the  Articles  of  Confedera 
tion,  no  specification  of  the  persons  by  whom,  or  of  the  mode 
in  which,  alterations  of  those  Articles  should  be  proposed,  but 
only  of  the  manner  in  which  they  should  be  ratified  and  estab 
lished,  some  range  was  left  to  the  people  of  the  Union  for  a 
choice  both  of  persons  and  mode.  The  only  limitation,  indeed, 
upon  their  action,  was,  that  whatever  mode  and  whatever  per 
sons  should  be  employed,  there  should  be  a  substantial  con 
formity  to  the  principles  presiding  over  the  genesis  of  Constitu 
tions,  digested  in  a  former  chapter,  of  which  the  most  important 
are,  first,  that  the  work  shall  be  committed  to  a  Convention, 
commissioned  by  the  existing  government,  for  the  sole  and  ex 
press  purpose  of  accomplishing  that  work ;  and,  secondly,  that 
to  the  sovereign  body  shall  be  accorded  an  opportunity  fully  and 
freely  to  express  its  will  in  relation  to  the  call  of  such  Conven 
tion. 

That  the  Federal  Convention  conformed  to  the  first  of  these 
principles,  in  all  essential  particulars,  is  beyond  question.  It 
was  made  up  of  delegates  appointed  by  the  legislatures  of  the 
several  States,  assembling,  on  the  basis  of  federal  equality,  for 
the  sole  and  express  purpose  of  proposing  such  alterations  of 
the  existing  Constitution  as  should  make  it  adequate  to  the  exi 
gencies  of  government  and  the  preservation  of  the  Union. 

It,  also,  in  my  judgment,  conformed  substantially  to  the  sec 
ond.  The  sovereignty  of  the  Union,  as  then  constituted,  resided 
in  the  people  of  the  United  States,  either  as  a  unit  or  as  distin 
guished  into  groups  under  the  name  of  States.  Hence,  it  is 
evident  that  when  the  Congress,  which  represented  the  sovereign 
as  a  unit,  recommended  and  called  the  Convention,  and  the 
State  legislatures,  which  collectively  represented  that  sovereign 
as  distinguished  into  the  groups  known  as  States,  acceded  to 
that  recommendation  and  appointed  delegates  to  the  Conven 
tion,  nothing  more  could  be  needed  to  show  that  the  call  of  that 
body  was  made  with  the  assent,  if  it  was  not  directly  the  act, 
of  the  sovereign  authority  of  the  Union. 

Whether  or  not,  in  any  of  its  acts,  that  Convention  exceeded 
its  jurisdiction,  assumed  revolutionary  powers,  and  thus,  so  far, 
divested  itself  of  its  original  character  as  a  Constitutional  Con 
vention  ;  whether  or  not,  in  other  words,  the  Constitution  pro 
posed  by  it  was  the  fruit  of  a  fair  exercise  of  the  powers  in- 


152  RATIFYING   CONVENTIONS. 

trusted  to  it,  or,  on  the  other  hand,  was  the  offspring  of  violated 
instructions,  of  usurpation,  is  a  different  question,  which  will  be 
considered  further  on.1 

§  167.  The  Conventions  of  the  eleven  States  which  ratified 
the  Federal  Constitution,  previously  to  its  establishment  in 
March,  1789,  —  the  only  remaining  ones  held  during  the  Revolu 
tionary  period,  —  were  all  regularly  called  by  the  legislatures  of 
their  respective  States.2  The  same  may  be  said  of  the  two  Con 
ventions  which  ratified  that  Constitution  subsequently  to  its 
establishment — those  of  North  Carolina  and  Rhode  Island  — 
as  well  as  of  the  Convention  of  the  independent  republic,  Ver 
mont,  whose  ratification  was  dated  January  10th,  1791. 

The  only  observation  I  deem  necessary  respecting  these  Con 
ventions  is,  that  they  differ  from  the  great  bulk  of  the  Conven 
tions  held  in  the  United  States,  in  that  their  function  was,  not 
to  mature,  but  to  adopt  and  establish,  a  code  of  organic  law. 
Doing  this,  however,  under  special  instructions,  I  have  consid 
ered  those  bodies  as  belonging  to  the  class  of  Constitutional 
Conventions.  This  mode  of  enacting  Constitutions  has  been 
practiced  by  several  of  the  States.  Under  the  first  Constitution 
of  Pennsylvania,  and  under  all  those  of  Vermont,  constitutional 
changes  have  been  recommended  by  bodies  called  Councils  of 
Censors,  and  then  passed  upon  by  Conventions  called  for  that 
express  and  only  purpose.  What  has  in  those  States  been  a 
matter  of  Constitutional  regulation,  has  in  several  instances 
occurred  in  other  States,  generally,  and  perhaps  always,  without 
special  authorization  in  the  fundamental  law.  Thus,  the  second 
Constitution  of  the  State  of  Georgia  was  framed  by  a  Conven 
tion  which  assembled  in  1788,  and  was  submitted  for  adoption  to 
two  Conventions  held  in  1789,  by  one  of  which  certain  amend 
ments  to  the  plan  were  proposed,  and  by  the  other  were  rati 
fied  and  established.3  In  a  few  cases  a  similar  use  has  been 
made  of  Conventions  in  new  States,  to  give  the  sanction  of 
such  States,  in  a  solemn  and  authentic  form,  to  amendments  to 
their  Constitutions  demanded  by  Congress  as  conditions  of  their 
admission  into  the  Union.  Such  Conventions  were  those  of 

1  See  §§  383-386,  post. 

2  See  Appendix  A,  for  a  list  of  these  bodies. 

3  See  §  148,  ante. 


OBSERVATIONS    UPON   THE    FOREGOING    CONVENTIONS.          153 

Michigan,  of  1836,  (two  Conventions,1)  of  Iowa,  of  1846,  of 
West  Virginia,  of  1861-3,  (final  session,)  and  others ;  some  of 
which,  however,  were  not  newly-elected  Conventions,  but  those 
previously  in  session  for  the  usual  purpose,  but  subsequently 
reassembled  to  give  the  sanction  of  the  State  to  the  conditions 
indicated.  In  regard  to  these  latter  instances,  the  only  question 
as  to  the  regularity  of  the  Conventions  depends  on  the  power 
of  the  legislative  bodies  calling  them  to  give  them  the  right  of 
definitive  legislation,  involved  in  the  act  of  passing  thus  upon 
a  fundamental  law,  —  a  subject  which  will  be  considered  in 
another  part  of  this  work.2 

§  168.  Respecting  the  principal  Conventions  of  the  Revolu 
tionary  period,  two  or  three  observations  should  be  made,  to 
prevent  misconceptions. 

1.  Considerable  stress  has  been  laid,  in  the  preceding  sections, 
upon  the  fact,  that  most  of  the  Conventions  of  that  class  were 
revolutionary,  either  in  their  origin  or  in  their  methods  of  pro 
cedure,  or  in  both.     This  imputation  against  the  character  of 
those  bodies,  however,  is  not  intended  as  an  impeachment  of 
them  as  having  no  basis  in  political  necessity,  but  only  as  a 
denial  to  them  of  regularity  and  legality  as  Constitutional  Con 
ventions.     Those  bodies  were  irregular,  from  the  nature  of  the 
case,  for  they  came  in  to  supply  the  hiatus  caused  by  the  subsi 
dence  of  regular  governments  in  the  several  colonies.     The  old 
organizations  being  broken  up,  the  elements  were  forced  to  seek 
new  combinations,  and,  to  that  end,  to  find  somewhere  new 
centres  about  which   to  arrange  themselves   according  to  their 
several   affinities.       The    Conventions,    originating   in    popular 
movements,  semi-official,  semi-spontaneous,  were  those  centres. 
The  wonder  is,  not  that  there  were  irregularities,  judging  by  the 
standards  of  peace  and  established  order,  but  that  the  aberra 
tions  were  not  greater  and  more  numerous. 

2.  But,  it  may  be  asked,  why  insist  so  strenuously  upon  the 
fact  that  the  Conventions  of  the  Revolutionary  period  were  revo 
lutionary  bodies,  if  it  be  admitted  that  they  were  grounded  upon 
an  imperious  necessity,  and  that  from  them,  as  from  a  fountain, 
has  flowed  the  present  order  of  things,  confessed  to  be  legiti 
mate  ?     The  answer  is,  because,  if  they  are  truly  revolutionary 

1  See  §§  202-204,  post. 

2  See  §§  480-486,  post. 


154        CONVENTIONS   OP   THE   SECOND   CLASS.      VARIETIES   OF. 

bodies,  they  mast  be  set  down  as  such,  in  order  that  their  action 
may  not  be  drawn  into  precedent,  as  that  of  normal  Constitu 
tional  Conventions.  If,  with  reference  to  the  colonial  establish 
ments  founded  by  the  crown,  those  Conventions  and  the  proceed 
ings  of  those  Conventions  were  not  revolutionary,  then,  neither 
would  similar  Conventions  and  proceedings,  antagonistic  to  the 
now  existing  order,  be  revolutionary  with  respect  to  that  order. 
§  169.  3.  If,  in  any  particular,  relating  to  their  initiation  or 
to  their  procedure,  the  Conventions  of  the  revolutionary  period 
should  seem  to  be  more  irregular  than  was  necessary,  it  should 
be  remembered  that  much  of  their  irregularity  was  due  to  the 
dangers  of  the  times,  and  much  to  the  ignorance  and  inexperi 
ence  of  those  who  managed  them.  While  the  foundations  of 
our  civil  polity  were  being  laid,  our  fathers  were  staggering 
under  the  burdens  of  a  long  war,  replete  with  public  and  pri 
vate  disasters.  For  the  public  safety,  it  was  often  found  neces 
sary  to  omit  some  of  those  forms  by  which  regular  governments, 
in  times  of  peace  and  order,  are  accustomed  to  ascertain  the 
public  will.  Moreover,  the  process  by  which  the  purely  Revolu 
tionary  Conventions,  theretofore  known,  were  gradually  adapted 
to  a  denned  constitutional  purpose,  was  then  just  commencing. 
The  absolute  necessity,  afterwards  so  well  understood,  of  lim 
iting  the  Constitutional  Convention  to  its  special  function,  in 
subordination  to  the  government  to  which  it  is  ancillary,  was 
very  imperfectly  recognized.  Hence,  as  we  have  seen,  the  Con 
ventions  generally  throughout  the  War  of  Independence  united 
in  themselves  functions  proper  only  for  bodies  vested  temporarily 
with  dictatorial  powers  —  for  those  provisional  organizations, 
which,  in  times  of  crisis,  are,  for  the  public  safety,  or  to  forward 
the  purposes  of  ambition,  intrusted  with  a  revolutionary  dis 
cretion,  incompatible  with  the  existence  of  any  other  govern 
ment. 

§  170.  (b).  The  second  and  most  numerous  class  of  Conven 
tions  consists  of  such  as  have  been  assembled  since  the  Federal 
Constitution  went  into  operation,  on  the  4th  of  March,  1789, 
and  they  may  be  divided  into  these  three  principal  varieties  :  — 

1.  Such   as  have  been  convened  for  the  purpose  of  framing 
Constitutions  for  new  States  to  be  formed  within  the  territorial 
jurisdiction  of  States  already  members  of  the  Union. 

2.  Such  as  have  been  called  to  frame  Constitutions  for  new 


CONVENTIONS   OF   THE    FIRST   VARIETY.  155 

States  to  be  formed  out  of  territory  of  the  United  States,  organ 
ized  under  its  authority,  or  acquired  in  an  organized  condition 
from  foreign  States. 

3.  Such  as  have  been  assembled  for  the  revision  of  the  Con 
stitutions  of  States,  members  of  the  Union. 

It  will  be  the  chief  purpose  of  what  remains  of  this  chapter 
to  bring  into  view  these  several  varieties  of  Conventions,  in 
order  to  ascertain  how  far  the  modes  in  which  they  were  called 
or  initiated  conform  to  the  principles  enunciated  in  the  opening 
sections  of  this  chapter. 

§  171.  1.  Of  the  first  variety  of  Conventions  enumerated, 
there  have  been  held,  up  to  the  present  time,  reckoning  the  first 
Convention  of  Vermont,  which  may  with  propriety  be  classed 
with  them,  though  held  previously  to  1789,  five  Conventions:1 
those  which  framed  the  first  Constitutions  of  Vermont,  Ken 
tucky,  Tennessee,  Maine,  and  West  Virginia. 

The  first  clause  of  the  3d  section  of  the  4th  Article  of  the 
Federal  Constitution  provides,  that  "  no  new  State  shall  be 
formed  or  erected  within  the  jurisdiction  of  any  other  State, 
nor  any  State  be  formed  by  the  junction  of  two  or  more  States 
or  parts  of  States,  without  the  consent  of  the  legislatures  of  the 
States  concerned,  as  well  as  of  the  Congress."  To  render  a 
Convention  legitimate,  therefore,  for  the  purpose  of  erecting  a 
new  State  within  the  jurisdiction  of  any  other  State  or  States, 
under  this  clause,  three  things  must  concur :  first,  the  prior  con 
sent  of  the  legislature  of  the  State  or  States  out  of  which  the 
new  one  is  to  be  carved  ;  second,  that  of  the  Congress  of  the 
United  States  ;  and,  third,  that  of  the  inhabitants  or  people  of 

1  The  territory  now  comprised  in  the  State  of  Vermont  was,  at  the  time  she 
declared  her  independence,  claimed  by  the  State  of  New  York.  It  was  not 
until  October  17th,  1790,  after  the  formation  of  the  present  Constitution  of  the 
United  States,  that  New  York  consented  to  her  erection  into  a  new  State.  She 
was  admitted  into  the  Union  in  1791,  after  she  had  maintained  her  indepen 
dence  against  the  State  of  New  York  and  the  United  States  for  fourteen  years. 
As  Vermont  was  erected  into  an  independent  State  and  admitted  into  the 
Union,  therefore,  with  the  consent  of  New  York,  and,  of  course,  of  Congress, 
the  conditions  required  by  the  Federal  Constitution  seem  to  have  been  fulfilled. 
For  the  details  of  the  action  of  Vermont  herself,  see  ante,  §§  154,  155.  The 
consent  of  New  York  was  given  through  commissioners  appointed  by  that  State, 
on  the  17th  of  October,  1790,  Vermont  paying  to  New  York  for  a  relinquish- 
ment  of  all  claim,  as  well  of  soil  as  of  jurisdiction,  the  sum  of  thirty  thousand 
dollars. 


156  CONVENTIONS   OF   THE   FIRST   VARIETY. 

the  proposed  State.  The  first  and  second  of  these  requisites 
follow  from  the  terms  of  the  constitutional  provision,  and  the 
third,  I  think,  from  the  reciprocity  of  right  and  obligation  sub 
sisting  between  the  several  portions  of  a  State.  Each  of  these 
owes  obedience,  or  a  quasi  allegiance  to  the  parent  State,  and, 
in  return,  is  entitled  to  protection,  which  excludes  the  idea  that 
the  State,  as  a  whole,  can  rightfully  sever  from  connection  with 
itself  a  part  thereof,  without  its  consent. 

§  172.  Before  the  adoption  of  the  Federal  Constitution,  no 
rule  upon  this  subject  existed,  and  an  attempt  to  dismember  a 
State,  however  conducted,  would  have  been  revolutionary.  The 
case  of  Vermont,  before  referred  to,  exhibits  the  embarrassments 
to  which  such  a  condition  of  things  was  likely  to  give  rise. 
There  were  many  years  during  which  the  troubles  between  that 
State  and  New  York  threatened  to  breed  a  civil  war,  not  be 
tween  those  States  alone,  but  between  those  States  and  such 
allies  as  they  might  respectively  secure.1  The  clause  of  the 
Federal  Constitution,  above  cited,  was  intended  to  obviate  the 
dangers  foreseen,  if  a  system  were  established,  permitting  no 
changes  in  the  territorial  extent  of  the  States,  or  allowing  them 
to  be  consummated  without  the  consent  of  Congress.  And  yet, 
as  was  perhaps  to  be  expected,  not  a  single  instance  of  the  dis 
memberment  of  a  State  has  ever  occurred,  under  the  clause 
quoted,  without  proceedings  more  or  less  irregular  or  revolu 
tionary.  By  this  is  not  meant,  that  the  final  Acts  by  which  the 
new  States  have  been  erected,  have  in  any  case  come  short  of 
conforming  substantially  to  the  constitutional  provision,  but, 
either  that  the  consent  of  the  parent  States  has  been  wrung 
from  them  by  the  pressure  of  events  —  perhaps,  secured  by 
political  advantages  accepted  as  the  price  of  that  which  must 
be  yielded  at  all  events  —  or  the  Conventions,  by  which  the 
initiatory  movements  have  been  conducted,  have  been  illegally 
called,  and  so  have  been,  in  character,  revolutionary. 

1  No  native  of  Vermont  would  willingly  charge  the  revolutionary  leaders  of 
that  State  with  entertaining  seriously  the  project  of  forming  an  alliance  with 
Great  Britain  against  New  York  and  the  other  twelve  colonies.  But  it  cannot 
be  denied,  that  they  at  least  coquetted,  in  a  very  imprudent  manner,  with  the 
British  generals ;  and,  had  the  policy,  so  long  pursued  by  Congress  under  the 
inspiration  of  New  York,  of  practical  hostility  to  Vermont,  been  continued,  that 
little  Commonwealth  might  have  been  driven  to  seek,  in  a  detested  alliance  with 
a  common  enemy,  that  freedom  which  was  denied  her  by  those  of  her  own 
household. 


KENTUCKY  CONVENTION  OF  1792.  157 

§  173.  After  Vermont,  the  first  State  erected  within  the  juris 
diction  of  another  State,  was  Kentucky.  As  this  case  occurred 
after  the  Federal  Constitution  had  gone  into  operation,  it  is 
worthy  of  attentive  consideration,  as  the  earliest  in  which  an 
application  could  be  made  of  the  constitutional  provision  in 
question. 

That  part  of  Virginia,  now  composing  the  State  of  Kentucky, 
was  separated  from  the  older  portions  of  the  State  by  interven 
ing  mountains.  When  the  war  of  the  Revolution  was  con 
cluded,  the  financial  distresses  common  to  Virginia  and  to  all 
the  States  of  the  Union  caused  the  infant  settlements  west  of 
the  mountains  to  be  neglected.  The  hostile  tribes  of  Indians 
on  their  southern  and  western  frontiers,  took  advantage  of  their 
defenceless  condition,  and  were  repressed  by  the  settlers  only 
with  great  difficulty,  and  at  their  own  cost.  In  the  fall  of  1784, 
the  exigencies  of  the  public  defense  called  together  an  assem 
blage  of  citizens  at  Danville,  Kentucky,  the  danger  to  be  guarded 
against  being  an  attack  by  the  Cherokee  Indians.  On  consul 
tation,  it  was  found  that  they  had  no  power  to  raise  forces,  or 
to  do  any  thing  to  protect  themselves,  and  it  was  therefore  re 
solved  to  call  a  Convention  of  the  entire  Kentucky  district.  To 
constitute  that  body,  the  assemblage  addressed  the  people  in  a 
circular  letter,  in  which  it  was  recommended  to  each  militia 
company  in  the  district  to  elect,  on  a  day  named  by  the  assem 
blage,  one  representative,  to  meet  in  Danville,  on  the  27th  of 
December,  1784,  to  take  into  consideration  the  important  subject 
of  self-defense.  The  Convention  met  at  the  time  appointed,  and 
then,  the  subject  of  a  separation  from  Virginia  being  broached, 
they  voted  in  favor  of  it  by  a  large  majority.  Another  Conven 
tion  followed  in  May,  1785,  at  which  a  similar  expression  of 
opinion  was  made,  and  resulted  in  a  petition  to  the  Assembly 
of  Virginia  for  liberty  to  form  a  new  State.1  A  third  Conven 
tion,  which  met  in  August  of  the  same  year,  having  commenced 
its  proceedings  by  a  unanimous  vote  in  favor  of  the  project  of 
separation,  the  Assembly  of  Virginia,  at  its  session  in  Novem 
ber,  1785,  passed  an  Act,  authorizing  the  election  of  five  dele 
gates  from  each  of  the  seven  counties  of  Kentucky,  to  take  into 
consideration  the  forming  an  independent  government.  Should 
the  Convention  determine  upon  it,  separation  was  assented  to, 
1  Hildreth,  Hist.  U.  S.t  Vol.  HI,  1st  Series,  p.  457. 


158  KENTUCKY  CONVENTION  OP  1792. 

provided  Congress,  before  the  first  of  June,  1787,  would  admit 
the  new  State  into  the  Union ;  and  provided  further,  that  Ken 
tucky  would  agree  to  assume  her  proportion  of  the  Virginia 
debt.1 

§  174.  The  Convention  thus  authorized  by  the  Virginia  As 
sembly,  was  prevented  by  an  expedition  against  the  Indians 
north  of  the  Ohio,  from  meeting,  except  in  numbers  less  than  a 
quorum  ;  but  an  application  to  Virginia,  on  the  part  of  such 
members  of  the  Convention  as  had  met  at  the  time  appointed 
(September  17,  1786),  resulted  in  a  new  Act  of  the  Virginia 
Assembly,  authorizing  a  new  Convention,  to  be  held  the  follow 
ing  year.2  Accordingly,  on  the  17th  of  September,  1787 — the 
very  day  on  which  the  Federal  Convention  closed  its  labors  at 
Philadelphia  —  a  fifth  Convention  met  at  Danville,  Kentucky, 
resolved  unanimously  in  favor  of  separation  from  Virginia, 
adopted  an  address  asking  admission  into  the  Union,  and,  in 
conformity  to  the  provisions  of  the  Act  under  which  they  met, 
directed  the  election  of  a  new  Convention  to  frame  a  State 
Constitution.3 

These  Acts  and  proceedings  seem  to  have  been  attended  by 
no  results ;  for,  on  the  18th  of  December,  1789,  another  Act  was 
passed  by  Virginia,  proposing  terms  of  separation,  which  were 
accepted  by  a  Convention,  which  met  on  the  26th  of  July,  1790, 
the  separation  to  take  effect  on  the  1st  of  June,  1792.  Finally, 
this  Convention  resolved,  that  in  December,  1791,  an  election 
should  be  held  for  forty-five  representatives  to  form  a  Constitu 
tional  Convention,  to  be  elected  under  certain  restrictions  as  to 
residence,  by  the  free  male  inhabitants  of  each  county,  above  the 
age  of  twenty-one  years,  the  Convention  to  be  held  at  Danville 
on  the  first  Monday  in  April,  1792.  At  the  time  and  place 
appointed  this  Convention  met,  and  by  it  was  framed  the  first 
Constitution  of  Kentucky,  to  take  effect,  as  above  stated,  on  the 
1st  day  of  June,  1792.  In  the  mean  time,  on  the  4th  of  February, 
1791,  an  Act  had  been  passed  by  Congress,  declaring  the  con 
sent  of  that  body,  that  a  new  State,  by  the  name  of  Kentucky, 
might  be  formed  within  the  jurisdiction  of  the  Commonwealth 
of  Virginia,4  and  admitting  the  same  into  the  Union,  the  Act  to 

1  Hildreth,  Hist.  U.  £,  Vol.  III.,  1st  Series,  p.  470. 

2  Id.  pp.  470-1. 

3  Id.  p.  529. 

4  1  U.  S.  Stat.  at  Large,  p.  189. 


TENNESSEE   CONVENTION   OF   1796.  159 

take  effect  on  the  same  day  as  the  Constitution.  Thus  Ken 
tucky  became,  from  a  district  of  the  State  of  Virginia,  a  State 
in  the  Union. 

Of  the  proceedings  above  detailed,  nothing  can  be  said  to 
impeach  the  substantial  regularity.  The  three  requisites  thereto, 
described  in  a  foregoing  section,  undoubtedly  concurred  at  the 
time  of  the  admission  of  the  State  into  the  Union.  There  was, 
however,  in  the  earlier  stages  of  the  agitation  which  led  to  it,  a 
degree  of  opposition  on  the  part  of  Virginia,  which,  had  it  not 
been  modified  by  other  influences,  would  probably  have  flamed 
into  actual  hostilities.  At  the  time  the  consent  of  Congress  was 
procured  to  the  separation  of  Kentucky  from  Virginia,  the  ques 
tion  of  the  location  of  the  capital  of  the  United  States  had 
assumed  such  importance  that  it  led  to  combinations  of  inter 
ests  otherwise  widely  opposed.  By  the  aid  of  those  northern 
members  who  favored  the  admission  of  Vermont,  the  Southern 
States  of  the  Union  were  enabled  to  effect  a  compromise  by 
which  that  State  and  Kentucky  came  in  together,  and  the  capi 
tal  was  located  on  the  Potomac  instead  of  farther  north,  on  the 
Susquehanna,  or  the  Delaware. 

§  175.  While  Kentucky  was  thus  preparing  herself  for  admis 
sion  into  the  Union,  Tennessee  was  undergoing  an  experience 
somewhat  similar.  Originally  a  part  of  North  Carolina,  the 
difficulties  experienced  by  the  latter  in  defending  her,  or  even 
in  administering  government  over  her,  led  to  such  neglect,  that 
early  in  the  course  of  the  war  with  England,  Tennessee  had 
set  up  an  independent  government,  in  defiance  of  the  parent 
State,  called  herself  the  State  of  Frankland,  elected  a  governor 
and  other  State  officers,  and  prepared  by  arms  to  maintain  her 
independent  position.  This  rebellion  was  quelled,  but  the  causes 
of  it  still  operated,  and  finally  resulted,  after  a  series  of  transi 
tions,  about  to  be  explained,  in  the  admission  of  the  district  into 
the  Union  as  the  State  of  Tennessee. 

The  first  act  of  importance  in  her  history,  after  the  suppres 
sion  of  the  State  of  Frankland,  was  the  passage  by  the  legisla 
ture  of  North  Carolina  of  an  Act  proposing,  upon  certain  con 
ditions,  the  cession  to  the  United  States  of  her  western  territory, 
now  known  as  Tennessee  —  the  motives  leading  to  the  cession 
being  in  the  preamble  declared  to  be,  the  repeated  and  earnest 
recommendation  of  Congress,  made  with  a  view  to  the  pay- 


160  TENNESSEE   CONVENTION   OF   1796. 

ment  of  the  public  debts  and  to  the  establishing  of  the  harmony 
of  the  United  States,  and  the  desire  of  the  inhabitants  of  such 
Western  territory,  that  the  cession  should  be  made,  "  in  order 
to  obtain  a  more  ample  protection  than  they  have  heretofore 
received."  Amongst  the  conditions  of  this  proposed  cession, 
the  fourth,  and,  for  our  purpose,  the  most  important,  was  as 
follows  :  —  Provided,  "  That  the  territory  so  ceded  shall  be  laid 
out  and  formed  into  a  State  or  States,  containing  a  suitable  extent 
of  territory,  the  inhabitants  of  which  shall  enjoy  all  the  privi 
leges,  benefits,  and  advantages  set  forth  in  the  Ordinance  of 
the  late  Congress  for  the  government  of  the  western  territory 
of  the  United  States."  * 

By  the  same  Act,  the  senators  of  the  State  of  North  Carolina, 
in  Congress,  were  required  to  execute  a  deed  of  cession  of  the 
said  territory,  upon  the  conditions  therein  expressed,  which  was 
done,  by  a  deed  bearing  date  the  25th  of  February,  1790. 

§  176.  A  few  days  after  the  execution  of  the  deed  of  cession, 
an  Act  was  passed  by  Congress,  approved  April  2d,  1790,  accept 
ing  the  cession  upon  the  conditions  imposed.2  In  May  of  the 
same  year,  Congress  passed  a  second  Act,  for  the  government 
of  the  ceded  territory,  providing,  that  it  should  constitute  a  single 
district;  that  the  inhabitants  should  enjoy  all  the  privileges,  bene 
fits,  and  advantages  set  forth  in  the  Ordinance  of  the  late  Con 
gress  for  the  government  of  the  territory  northwest  of  the  Ohio ; 
and  that  the  government  of  said  territory  should  be  similar  to 
that  which  was  then  exercised,"  &c.,  &c.3 

It  is  important  now  to  note  the  provisions  of  the  "  Ordinance 
of  the  late  Congress,"  thus  variously  designated  as  passed  for 
the  government  of  "  the  Western  territory  of  the  United  States," 
and  of  "the  territory  Northwest  of  the  Ohio,"  commonly  known 
as  "  the  Ordinance  of  1787,"  so  far  as  those  provisions  have  a 
bearing  on  the  construction  of  the  deed  of  cession.  That  Ordi 
nance,  in  the  5th  Article  of  the  part  of  it  styled  "  the  Compact," 
after  providing  for  the  division  of  the  territory,  covered  by  it, 
into  not  less  than  three  nor  more  than  five  States,  prescribes, 
that  "  Whenever  any  of  the  said  States  shall  have  sixty  thousand 
free  inhabitants  therein,  such  State  shall  be  admitted,  by  its  dele- 

1  1  U.  S.  Stat.  at  Large,  pp.  106-109. 

2  Ibid. 

3  Id.  p.  123. 


TENNESSEE  CONVENTION  OF  1796.  161 

gates,  into  the  Congress  of  the  United  States,  on  an  equal  foot 
ing  with  the  original  States  in  all  respects  whatever,  and  shall 
.be  at  liberty  to  form  a  permanent  Constitution  and  State  gov 
ernment;  provided^  the  Constitution  and  government,  so  to  be 
formed,  shall  be  republican,  and  in  conformity  to  the  principles 
contained  in  these  articles,  and,  so  far  as  it  can  be  consistent 
with  the  general  interest  of  the  Confederacy,  such  admission 
shall  be  allowed  at  an  earlier  period,  and  when  there  may  be  a 
less  number  of  free  inhabitants  in  the  State  than  sixty  thousand." 

This  Ordinance,  though  adopted  before  the  establishment  of 
the  Federal  Constitution,  and  so,  perhaps,  in  effect,  repealed  by 
that  Act,  was  afterwards  expressly  revived  by  the  Congress 
under  the  new  Constitution,  without  any  changes,  except  merely 
such  as  were  necessary  to  adapt  it  to  the  altered  state  of  things.1 
The  right  of  admission  into  the  Union,  therefore,  guaranteed  by 
this  Ordinance  to  the  inhabitants  of  the  territory  northwest  of 
the  Ohio,  was,  by  the  effect  of  the  deed  of  cession  and  of  the 
Act  of  Congress  accepting  the  same,  incorporated  into  that  deed, 
and  became  the  right  of  the  inhabitants  of  the  Tennessee  terri 
tory. 

§  177.  The  question  whether  the  territory,  thus  ceded,  should 
form  one  or  more  than  one  State,  being  left  undecided,  so  that 
it  could  not  be  known  when  the  contingency  of  there  being 
sixty  thousand  free  inhabitants,  within  the  meaning  of  Congress, 
had  happened,  there  was  evidently  room  for  a  disagreement  be 
tween  that  body  and  the  Territory,  or  some  portion  of  it,  claim 
ing  admission  into  the  Union  as  its  right  under  the  deed  of 
cession.  Such  a  disagreement  actually  arose,  and  was  followed 
by  a  protracted  and  angry  controversy,  of  which  the  effects  are 
not  entirely  unfelt  to  this  day. 

§  178.  In  July,  1795,  the  Territorial  legislature  of  Tennessee 
ordered  a  census  of  the  whole  Territory  to  be  taken,  for  the  pur 
pose  of  ascertaining  whether  there  was  the  requisite  number  of 
inhabitants  to  entitle  her  to  admission  into  the  Union,  according 
to  the  Ordinance  of  1787  and  the  deed  of  cession.  The  Act 
for  this  purpose  provided,  that  "  if  it  should  appear  that  there 
were  sixty  thousand  inhabitants,  counting  the  whole  of  the  free 

l  1  U.  S.  Stat.  at  Large,  p.  50.    That  the  adoption  of  the  present  Constitution 
did  repeal  the  Ordinance,  has  been  expressly  held  by  the  Supreme  Court  of  the 
United  States.     Strader  v.  Graham,  10  How.  (U.  S.)  R.  82. 
11 


162  TENNESSEE   CONVENTION   OF   1796. 

persons,  including  those  bound  to  service  for  a  term  of  years, 
and  excluding  Indians  not  taxed,  and  adding  three-fifths  of  all 
other  persons,  the  Governor  be  authorized  and  requested  to  rec 
ommend  to  the  people  of  the  respective  counties,  to  elect  five 
persons  for  each  county  to  represent  them  in  Convention,  to 
meet  at  Knoxville,  at  such  time  as  he  shall  judge  proper,  for  the 
purpose  of  forming  a  Constitution  or  permanent  form  of  govern 
ment."  i 

The  census  was  taken  in  the  autumn  of  1795,  and  the  result 
was,  that  there  were  declared  to  be  77,262  inhabitants,  of  whom 
10,613  were  slaves.  In  November,  1795,  the  Governor  announced 
this  result,  and,  in  pursuance  of  the  Act  for  that  purpose,  called 
on  the  people  to  elect  delegates  to  a  Convention  to  frame  a  Con 
stitution,  to  meet  at  Knoxville  on  the  llth  of  January,  1796. 
Accordingly,  a  Convention  was  elected,  and  met  there  on  that 
day,  consisting  of  fifty-five  members,  five  from  each  of  the 
eleven  counties,  and,  on  the  6th  of  February  following,  adopted 
the  first  Constitution  of  Tennessee.  A  copy  of  this  Constitu 
tion  was,  on  the  19th  of  the  same  month,  forwarded  by  the  Gov 
ernor  of  the  Territory  to  the  President  of  the  United  States,  with 
a  notification  that  on  the  28th  of  March,  at  which  time  the 
General  Assembly  of  the  State  of  Tennessee  would  meet  to 
act  on  the  Constitution,  the  temporary  government  established 
by  the  Congress  would  cease.  This  copy  and  notification,  with 
accompanying  documents,  were  received  by  President  Washing 
ton  on  the  28th  of  February,  and  by  him  were,  on  the  8th  of  April, 
communicated  to  Congress.  The  claim  of  Tennessee  to  admis 
sion,  based  upon  the  provisions  of  the  Ordinance  of  1787,  did 
not  receive  from  that  body  a  ready  or  an  unquestioned  assent. 
After  an  energetic  discussion,  however,  an  Act  for  the  admission 
of  the  State  was,  on  the  6th  of  May,  1796,  passed  by  a  vote  of 
43  to  30,  and  was  approved  by  the  President  on  the  first  of  June 
following,  to  take  effect  immediately. 

§  179.  The  grounds  of  the  opposition,  which,  in  the  Senate 
especially,  was  strenuous,  were  briefly  as  follows:  That  the 
compact,  under  which  admission  was  claimed,  was  capable  of 
two  constructions  :  one,  that  so  soon  as  sixty  thousand  free 
inhabitants  should  be  collected  within  the  Territory,  they  should 
be  entitled  to  a  place  in  the  Union  as  an  independent  State ; 
1  Parton's  Life  of  Andrew  Jackson,  Vol.  I.  pp.  169, 170. 


TENNESSEE  CONVENTION  OF  1796.  163 

the  other,  that  Congress  must  first  lay  off  the  territory  into  one 
or  more  States,  according  to  a  just,  discretion,  defining  the  same 
by  bounds  and  limits  ;  and  that  the  admission  of  the  States 
thus  defined  should  take  place  as  their  population  respectively 
amounted  to  the  number  of  free  inhabitants  mentioned  ;  that 
is,  that  the  sixty  thousand  could  not  claim  admission  into  the 
Union,  unless  they  were  comprised  within  a  State  whose  terri 
torial  limits  had  been  previously  ascertained  by  an  Act  of  Con 
gress;  that  the  latter  construction  was  the  preferable  one,  be 
cause  it  was  conformable  not  only  to  the  spirit,  but  to  the  letter 
of  the  Ordinance  and  deed  of  cession,  which  contemplated  the 
erection  of  Tennessee  into  "  one  or  more  States,"  as  Congress 
might  determine  ;  that  the  Territory  of  Tennessee  had  no  other 
or  greater  rights  than  had  the  Territories  northwest  of  the  Ohio, 
for  whom  the  ordinance  had  been  expressly  enacted ;  and  it  could 
not  be  pretended  that  the  latter  would  be  entitled  to  admission 
into  the  Union  as  one  State  so  soon  as  their  population  should 
amount  to  sixty  thousand,  because  the  Ordinance  itself  divided 
that  country  into  three  separate  and  distinct  States,  each  of 
which  must  contain  sixty  thousand  free  inhabitants  before  it 
could  claim  to  be  received  ;  that  the  action  of  Congress  upon 
the  question  now  would  be  regarded  and  followed  hereafter  as 
a  precedent,  and  hence  it  was  of  the  utmost  importance  that  no 
sanction  should  be  given  to  any  proposition  which  expressly  or 
even  impliedly  admitted  that  the  people  inhabiting  either  of  the 
territories  of  the  United  States  could,  at  their  own  mere  will 
and  pleasure,  and  without  the  declared  consent  of  Congress, 
erect  themselves  into  a  separate  and  independent  State  ;  that 
the  provision  of  the  Ordinance  relating  to  the  admission  of  new 
States,  when  there  should  be  sixty  thousand  free  inhabitants 
within  their  respective  limits,  evidently  contemplated  the  taking 
of  a  census,  and  as  Congress  were  to  act  upon  the  result  of  such 
census,  it  was  more  proper  that  it  should  be  taken  in  pursuance 
of  its  own  order  than  by  that  of  a  community  whom  interest 
might  lead  to  exaggerate  its  numbers,  and  whose  report,  there 
fore,  if  accurate,  would  be  received  with  distrust ;  and,  finally, 
that  there  was  reason  to  doubt  the  accuracy  of  the  count  taken 
by  the  territorial  government,  since  its  orders  required  the  sher 
iffs  of  the  several  counties  to  include  in  their  enumeration  all 
persons  within  their  respective  limits  within  the  period  allowed 


164  TENNESSEE   CONVENTION   OF   1796. 

for  making  it,  which  was  two  months  ;  hence,  that  the  same 
men  might  have  been  counted  in  several  counties,  nay,  in  every 
county  in  the  Territory,  and  that  without  any  intentional  fraud.1 
§  180.  On  the  other  hand,  the  friends  of  the  bill  contended, 
that  the  people  of  Tennessee  became,  ipso  facto,  a  State,  the 
moment  they  numbered  sixty  thousand  free  inhabitants,  and 
that  it  became  the  duty  of  Congress,  as  part  of  the  original 
compact,  made  at  the  time  the  Territory  was  ceded  to  the  United 
States,  to  recognize  them  as  such,  and  to  admit  them  into  the 
Union,  whenever  satisfactory  proof  was  furnished  to  them  of 
that  fact ;  that,  to  the  objections,  that,  previously  to  the  proof  of 
that  fact  being  given,  it  was  necessary  that  Congress  should 
have  laid  out  and  formed  that  territory  into  "  one  or  more 
States,"  and  that  the  proof  of  their  number  should  have  been 
given  under  direction  and  by  order  of  Congress,  the  people  being 
incompetent  to  give  that  proof  themselves,  it  was  a  sufficient 
answer  that  both  those  objections  supposed  a  construction  of 
the  Ordinance  of  1787  and  of  the  deed  of  cession,  which  was 
inadmissible,  since  it  rendered  that  compact  binding  upon  one 
party  and  not  upon  the  other ;  that  it  was  absurd  to  suppose 
that  that  Ordinance,  whose  object  it  was  to  establish  the  princi 
ples  of  a  free  government,  and  to  determine  with  certainty  the 
conditions  of  the  admission  of  new  States  into  the  Union,  had 
made  the  time  when  those  people  were  to  enjoy  that  govern 
ment  and  be  admitted  as  a  member  of  the  Union  depend,  not 
on  the  contingency  of  their  having  sixty  thousand  free  inhab 
itants,  but  on  certain  Acts  of  Congress ;  in  other  words,  on  the 
sole  will  of  Congress ;  that  either  it  must  be  conceded  that  their 
admission  depended  solely  on  the  condition  of  the  compact 
being  fulfilled,  to  wit,  their  having  the  population  required,  or 
it  must  be  declared  that  it  rested  on  another  act,  which  might 
be  done  or  refused  by  the  other  party  ;  that,  as  to  the  return  of 
the  number  of  inhabitants,  no  mode  had  been  fixed  by  the  com 
pact  how  that  number  should  be  determined,  but,  as  by  the  Acts 
of  Congress  establishing  temporary  governments  in  the  territory 
affected  by  the  Ordinance  of  1787,  whenever  they  should  have 
respectively  five  thousand  inhabitants,  the  governors  of  the  Ter 
ritories  were  especially  authorized  to  cause  the  enumeration  to 

t  Benton's  Abr.  Deb.  in  Cong.,  Vol.  I.  pp.  754-759  ;  Id.  Vol.  XII.  p.  751.    See 
also  Scott  v.  Jones,  5  How.  (U.  S.)  R.  373. 


TENNESSEE   CONVENTION   OF    1796.  165 

be  made,  there  could  be  no  doubt  the  same  course  was  to  be 
pursued  with  respect  to  their  qualifications  for  becoming  mem 
bers  of  the  Union ;  that,  at  most,  it  was  merely  a  question  of 
evidence;  and,  if  no  mode  had  been  presented  for  taking  the 
enumeration,  it  only  made  it  more  difficult  for  Congress  or  the 
territory  to  be  satisfied  of  the  fact  of  their  having  the  requisite 
number,  but  that  it  could  not  affect  the  right ;  that,  instead  of 
caviling  at  the  mode  of  proof,  Congress  ought  to  address  itself 
to  the  task  of  weighing  the  evidence  which  the  parties  interested 
had  collected  and  brought  forward  ;  that  it  would  be  well  to 
consider  the  consequences  of  refusing,  at  that  time  and  under 
those  circumstances,  to  receive  Tennessee  into  the  Union ;  that, 
if  it  was  desired  to  establish  a  temporary  government  there,  it 
was  doubtful  whether  that  could  be  accomplished,  for  the  peo 
ple  believed  that  in  changing  their  government  they  only  exer 
cised  a  right  which  had  been  secured  to  them  by  a  sacred 
compact,  and,  under  that  belief,  they  would  be  disposed  to 
defend  it.1 

§  181.  Respecting  the  illegitimacy  of  the  first  Tennessee  Con 
vention,  there  can  be,  in  my  judgment,  no  doubt.  Saying  noth 
ing  of  the  possible  inaccuracy  or  falsification  of  the  census,  in 
fact,  the  cardinal  objection  remains,  that  one  of  the  two  parties 
expected  to  act  officially  upon  the  result  of  it,  could  not  know 
that  it  was  not  fraudulent.  It  was  taken  by  that  one  of  the  two 
parties  which  was  alone  interested  to  make  the  enumeration  as 
great  as  possible.  The  probability  of  an  honest  count  would 
have  been  much  greater  had  it  been  made  under  the  direction 
and  superintendence  of  Congress. 

Again :  The  Convention  was  called  without  an  enabling  Act 
of  the  body  in  whom  was  lodged,  practically,  the  sovereignty  of 
the  Union,  so  far  as  relates  to  the  Territories,  —  the  Congress 
of  the  United  States.  The  purpose  of  that  Convention  was 
to  initiate  a  change  in  the  mode  and  instrumentalities  in  and 
through  which  the  sovereign  body  of  the  Union  should  exercise 
over  the  Territory  of  Tennessee  its  rights  of  sovereignty;  that  is, 
a  change  which  should  divest  Congress  of  its  jurisdiction  to 
make  local  laws  for  the  Territory,  and  give  that  power  to  a  polit 
ical  organization,  to  be  erected  within  the  latter  by  the  people 
thereof.  Such  a  change  involved  the  exercise  of  sovereignty, 
1  Benton's  Abr.  Deb.  in  Cong.,  Vol.  I.  pp.  754-759. 


166  TENNESSEE   CONVENTION    OF    1796. 

and  could  be  effected  only  by  the  interposition  of  the  sovereign 
body  acting  through  some  one  of  its  recognized  agents,  forming 
the  government  of  the  Union.1 

§  182.  Moreover,  the  argument  of  those  who  favored  the  ad 
mission  of  Tennessee,  to  the  effect  that,  the  right  at  some  time 
to  be  admitted  into  the  Union  being  conceded,  the  Territory 
would  be  legally  justifiable  in  forcing  her  way  into  the  Union, 
if  Congress  should  neglect  to  take  steps  to  admit  her,  whenever 
the  right  should  have  in  fact  accrued,  is  wholly  unfounded.  Un 
doubtedly,  if  Congress  were,  without  good  cause,  to  refuse,  upon 
any  conditions,  to  admit  a  Territory  entitled  to  admission,  such 
refusal  would  be  an  abuse  of  power,  and  if  persevered  in  to  a 
sufficient  length,  might  justify  or  necessitate  a  revolution.  But 
the  right  to  admit  involves  the  right  to  refuse  to  admit,  at  least, 
within  certain  limits,  as,  until  prescribed  conditions  are  not  only 
in  fact  fulfilled,  but  can  be  ascertained  to  have  been  fulfilled. 
Whether  a  Territory  shall  be  admitted  or  not,  is  largely  a  ques 
tion  of  expediency  with  reference  to  the  national  interests,  and 
of  that  expediency  the  national  legislature  is,  by  the  Federal 
Constitution,  made  the  exclusive  judge.  In  exercising  its  dis 
cretion,  that  body  might  act  ignorantly  or  factiously,  but  it 
could  hardly  be  said  to  act  unconstitutionally ;  and  no  Territory 
could  be  justified,  on  constitutional  grounds,  in  resorting  to  force, 
or  to  methods  that  involve  it,  to  accelerate  or  reverse  its  decis 
ion.  If,  in  the  face  of  the  dissent,  or  without  the  express  initia 
tive,  of  the  Congress  of  the  United  States,  a  Territory  were  to 
proceed  to  frame  —  much  more  to  establish — a  State  govern 
ment,  it  would  place  itself  outside  the  pale  of  the  law,  and 
invoke  the  methods  and  the  forces  of  revolution. 

For  these  reasons,  I  deem  the  first  Convention  of  Tennessee 
legally  without  warrant  or  justification,  and  therefore  revolu 
tionary.  And  the  argument  is  not  affected  by  the  fact  that  the 
action  of  that  body  was  finally  acquiesced  in  by  Congress.  The 
acquiescence  of  Congress  might  legitimate  the  Constitution,  but 
could  not  remove  from  the  body  which  framed  it  the  revolution 
ary  taint  imparted  to  it  in  its  inception.  The  only  conclusion 
properly  deducible  from  the  acquiescence  of  Congress  would  be 
that,  having  the  right  to  strangle  the  child,  as  illegitimate,  it  had 

1  See  opinion  of  McLean,  J.,  in  Scott  v.  Jones,  Lessee,  &c.,  5  How.  (U.  S.)  R. 
380-382. 


MAINE   CONVENTION   OF  1819.  167 

seen  fit  to  forego  the  exercise  of  that  right,  preferring,  rather,  on 
the  whole,  to  receive  it  into  the  household,  and  confer  upon  it 
the  privileges  of  offspring  lawfully  begotten. 

§  183.  The  next  example  of  the  dismemberment  of  a  State 
was  that  of  Maine,  formed  from  a  portion  of  the  State  of  Massa 
chusetts. 

As  early  as  1786,  before  the  adoption  of  the  Federal  Consti 
tution,  the  project  of  erecting  the  District  of  Maine  into  a  sep 
arate  State  had  been  entertained,  and  a  Convention  had  at  one 
time  met  at  Portland  to  consider  the  subject.1  It  was  not,  how 
ever,  until  after  the  second  war  with  England  that  the  project 
assumed  definite  proportions.  The  stand  taken  by  the  Federal 
party  during  that  war  had  reflected  great  odium  upon  Massachu 
setts,  which  had  been  controlled  by  it,  and  in  which  it  had  been 
more  offensively  conspicuous  than  in  any  State  in  the  Union. 
As  in  most  new  and  sparsely  settled  districts,  the  Democratic  or 
war  party  was  in  a  majority  in  the  District  of  Maine,  and  it  was 
natural  that  its  leaders  should  chafe  under  the  sway  of  the 
Federalists  in  the  older  part  of  the  State.  Nothing,  indeed,  stood 
in  the  way  of  a  separation  but  the  political  ambition  of  the 
parent  State,  it  being  evident  that  to  part  with  that  District 
would  reduce  Massachusetts  to  a  second-rate  position  in  na 
tional  affairs,  in  which  she  would  be  forced  to  yield  the  leader 
ship  of  the  North,  hitherto  held  by  her,  to  the  rising  State  of 
New  York,  The  weight  of  her  unpopularity,  however,  was  so 
great,  after  the  war,  that  she  despaired  of  longer  retaining  her 
primacy  in  the  Union,  and  her  federal  politicians  were  not  un 
willing  to  strengthen  themselves  for  a  while  at  home  by  letting 
Maine  go.  The  Federalists  of  Maine  protested  against  this  de 
sertion,  but  the  people  of  that  District,  after  two  or  three  trials, 
having  pronounced  decidedly  in  favor  of  separation,  a  Conven 
tion  was  called,  under  the  authority  of  an  Act  of  the  legislature 
of  Massachusetts,  to  form  a  State  Constitution.  By  this  body, 
as  we  shall  see,  was  framed  the  first  Constitution  of  Maine. 

§  184.  The  earliest  official  action  relating  to  the  proposed 
separation  was  the  Act  of  the  Massachusetts  legislature  referred 
to,  entitled,  u  An  Act  relating  to  the  Separation  of  the  District 
of  Maine  from  Massachusetts  proper,  and  forming  the  same 
into  a  separate  and  independent  State,"  passed  June  19,  1819. 
l  Hildreth,  Hist.  U.  S.,  Vol.  III.  1st  series,  p.  472. 


168  MAINE  CONVENTION   OP  1819. 

The  parts  of  this  Act  important  for  my  purpose  were  as  fol 
lows  :  — 

"  WJiereas,  it  has  been  represented  to  this  legislature,  that  a 
majority  of  the  people  of  the  District  of  Maine  are  desirous  of 
establishing  a  separate  and  independent  government  within  the 
said  District,  therefore  be  it  enacted,"  &c. 

"  That  the  consent  of  this  commonwealth  be,  and  the  same 
is,  hereby  given,  that  the  District  of  Maine  may  be  formed  and 
erected  into  a  separate  and  independent  State,  if  the  people 
of  the  said  District  shall,  in  the  manner,  and  by  the  majority 
hereinafter  mentioned,  express  their  consent  and  agreement 
thereto,  upon  the  terms  and  conditions  :  and  provided  the  Con 
gress  of  the  United  States  shall  give  its  consent  thereto,  before 
the  fourth  day  of  March  next,  which  terms  and  conditions  are  as 
follows "  :  —  (the  terms  and  conditions  relate  to  the  public 
property  and  the  guaranty  of  existing  rights)  "  subject,  how 
ever,  to  be  modified  or  annulled  by  the  agreement  of  the  legis 
latures  of  both  of  said  States,  but  by  no  other  power  or  body 
whatsoever." 

§  185.  The  requisites,  as  to  manner  and  majority,  of  the 
assent  and  agreement  to  be  given  by  the  people  of  the  District 
of  Maine,  prescribed  in  the  second  section,  were,  "that  the 
inhabitants  of  the  several  towns,  districts,  and  plantations  in 
the  District  of  Maine,  qualified  to  vote  for  Governor  or  Sen 
ators,"  should  "  assemble  in  regular  meeting,  to  be  notified  by 
warrants  of  the  proper  officers,  on  the  fourth  Monday  of  July 
next,  and  "  should  "  in  open  meeting,  give  in  their  votes  on  this 
question :  '  Is  it  expedient  that  the  District  of  Maine  shall 
become  a  separate  and  independent  State,  upon  the  terms  and 
conditions  provided  in  an  Act  entitled,' "  &c.  The  Act  then 
proceeded  to  give  minute  regulations  for  conducting  the  elec 
tion,  the  return  and  canvassing  of  the  votes,  and  the  proclama 
tion  of  the  result  to  the  people.  It  finally  provided,  that,  in  case 
there  should  have  been  cast  in  favor  of  such  separation  a 
majority  of  fifteen  hundred  votes,  "  then  and  not  otherwise  the 
people  of  said  District "  should  "  be  deemed  to  have  expressed 
their  consent  and  agreement  that  the  said  District "  should  "  be 
come  a  separate  and  independent  State,  upon  the  terms  and 
conditions  above  stated."  In  which  case  it  required  the  Gov 
ernor,  in  his  proclamation,  to  "call  upon  the  people  of  said 


WEST  VIRGINIA  CONVENTION   OF  1861.  169 

District  to  choose  delegates  to  meet  in  Convention  for  the  pur 
pose  "  of  framing  a  Constitution  for  the  proposed  State. 

In  pursuance  of  this  Act,  a  Convention  was  elected,  and  met 
at  Portland  on  the  llth  of  October,  1819,  and,  after  a  session 
of  eighteen  days,  adopted  and  submitted  to  the  people  of  the 
District  a  Constitution,  which  the  latter,  on  the  6th  of  Decem 
ber,  1819,  in  their  town-meetings,  ratified  and  confirmed.  This 
Constitution  having  been  presented  to  Congress,  with  a  petition 
for  the  admission  of  the  State  into  the  Union,  an  Act  was 
passed  for  that  purpose  on  the  3d  of  March,  1820,  which,  after 
reciting  the  Act  of  Massachusetts,  and  that,  in  pursuance 
thereof,  "  the  people  of  that  part  of  Massachusetts  heretofore 
known  as  the  District  of  Maine,  did,  with  the  consent  of  the 
legislature  of  said  State  of  Massachusetts,  form  themselves 
into  an  independent  State,  and  did  establish  a  Constitution  for 
the  government  of  the  same,  agreeably  to  the  provisions  of  said 
Act,"  enacted,  "  that  from  and  after  the  15th  of  March,  1820,  the 
State  of  Maine  be  and  be  declared  to  be  one  of  the  United 
States  of  America." 

Respecting  the  legitimacy  of  the  Convention  thus  called,  no 
extended  observations  are  necessary.  That  body  undoubtedly 
possessed,  in  full  measure,  each  of  the  requisites  to  give  it  a 
legitimate  character  as  a  Constitutional  Convention,  —  viz.,  the 
consent  of  the  people  of  the  State  of  Massachusetts,  expressed, 
as  the  Constitution  of  the  United  States  requires,  by  the  legis 
lature  of  the  State ;  that  of  the  inhabitants  of  the  district,  and 
that  of  Congress. 

§  186.  The  only  remaining  instance  of  the  formation  of  a 
State  by  the  dismemberment  of  another  State,  is  that  of  West 
Virginia. 

The  official  proceedings  culminating  in  the  establishment  of 
this  new  State,  were  as  follows :  — 

On  the  17th  of  April,  1861,  a  body  of  men,  assembled  by  the 
legislature  of  Virginia,  on  the  13th  of  February  preceding,  and 
styling  themselves  "  the  Convention  of  Virginia,"  passed  a  pre 
tended  ordinance  of  secession  from  the  United  States,  and,  so 
far  as  they  had  power  to  do  so,  carried  the  State,  as  a  political 
organization,  out  of  the  Union.  The  officers  of  the  State,  with 
great  unanimity,  joined  the  rebel  cause,  carrying  with  them  the 
public  funds,  the  archives  of  the  State,  and  such  of  the  national 


170  WEST   VIRGINIA   CONVENTION   OF   1861. 

forts  and  arsenals  within  the  limits  of  Virginia,  as  they  had  the 
physical  ability  to  seize  and  maintain.  The  insurgents  not  act 
ually  withdrawing  from  the  State,  the  situation  was  as  follows  : 
There  was  the  State  of  Virginia,  considered  territorially  as  a 
portion  of  the  national  domain ;  there  were  the  rebel  forces,  gov 
ernment,  and  population  in  hostile  possession  of  that  part  of  the 
State  occupied  by  their  camps  (for  they  could  be  recognized  by 
the  United  States  and  its  adherents  as  only  temporarily  en 
camped  upon  a  portion  of  the  territory  of  the  Union)  ;  and 
there  were  the  loyal  Virginians  settled,  in  an  unorganized  con 
dition,  upon  the  residue.  In  these  circumstances,  and  at  this 
stage  of  events,  it  is  evident  that  the  people  of  the  State  of 
Virginia,  so  far  as  the  Constitution  or  Government  of  the 
United  States  could  recognize  a  people  at  all,  consisted  only 
of  its  loyal  inhabitants ;  and  they  were  left,  as  by  some  great 
calamity,  wholly  destitute  of  a  government,  except,  for  national 
purposes,  that  of  the  Union,  —  reduced,  so  far  as  their  internal 
administration  was  concerned,  to  a  state  of  nature.  In  other 
words,  so  far  as  related  to  their  local  institutions,  they  were  in  a 
condition  analogous  to  that  in  which  their  fathers  were,  when, 
upon  the  suppression  of  the  royal  government  in  1774,  they 
were  compelled  themselves,  in  their  original  capacity,  to  gather 
up  the  ravelled  threads  of  government  and  weave  them  anew 
into  a  system  for  their  defence.  In  1774,  there  had  existed  a 
colonial  establishment,  but  organized  under  the  crown,  and 
therefore  hostile  to  their  liberties,  for  which  reason  it  had  been 
repudiated  by  the  people  of  Virginia ;  so,  in  1861,  there  was  a 
State  organization,  which,  having  ceased  to  be  loyal  to  the 
Union,  for  which  the  Virginians,  not  seduced  by  the  treason  of 
their  seceding  rulers,  still  retained  their  affection,  and  to  which 
they  deemed  allegiance  still  due,  they  ceased  to  follow  in  its 
eccentric  course,  or  to  obey.  They,  therefore,  under  the  pro 
tection  and  with  the  countenance  of  the  United  States  Govern 
ment,  commenced,  as  with  a  tabula  rasa,  the  reconstruction  of 
society  from  its  foundations.  This  was  possible  only  by  em 
ploying  the  methods  of  revolution.  The  initiative  must  be 
taken  by  some  body  of  persons  having  rights  of  jurisdiction 
within  the  limits  of  Virginia.  No  such  body  existed.  It  could 
not  regularly  be  done  by  the  citizens  of  Virginia  still  remaining 
loyal,  because  they  were  mere  private  individuals.  It  could  not 


WEST  VIRGINIA   CONVENTION  OF   1861.  171 

be  regularly  done  by  the  people  or  Government  of  the  Union, 
for,  by  the  Federal  Constitution,  the  right  of  founding  and 
amending  Constitutions  for  the  State  of  Virginia  had  been 
delegated  to  the  people  of  that  State,  acting  by  and  through 
their  State  organization,  subject  merely  to  the  federal  guaranty 
that  such  Constitutions  should  be  republican  —  which  State 
organization  had  ceased  to  exist.  The  work  of  reconstruction, 
therefore,  must  be  inaugurated  irregularly,  since  a  government 
must  be  forthwith  established.  Of  the.  only  two  modes  of 
effecting  this  work,  at  that  time  practicable,  namely,  that  by  a 
spontaneous  movement  of  the  loyal  citizens  of  Virginia,  and 
that  by  an  enabling  Act  to  be  passed  by  the  Congress  of  the 
United  States,  both  irregular,  the  former  was  adopted,  as  I  have 
said,  with  the  countenance  and  under  the  protection  of  the 
United  States.  The  steps  taken  to  this  end  were  as  follows :  — 
§  187.  On  the  llth  of  June,  1861,  a  Convention  of  loyal 
Virginians  met  at  Wheeling  upon  the  call  of  influential  persons 
in  different  parts  of  the  State,  with  a  view  to  reconstruct  the 
State  government.  Taking  their  stand  upon  the  Virginia  Bill 
of  Rights,  framed  in  1776,  and  reaffirmed  in  1830  and  1851, 
they  assumed  to  themselves  the  powers  of  government,  forfeited 
by  the  treason  of  their  rulers,  and  pronounced  the  Act  of  the 
General  Assembly  calling  the  Convention  of  February,  1861, 
without  the  previously  expressed  consent  of  the  people,  to  be 
an  act  of  usurpation.  After  denouncing  the  acts  of  that  Con 
vention  as  abuses  of  the  powers  intrusted  to  it,  stigmatizing 
especially  its  attempt  "  to  bring  the  allegiance  of  the  people  of 
the  United  States  into  direct  conflict  with  their  subordinate 
allegiance  to  the  State  ;  thereby  making  obedience  to  their  pre 
tended  ordinances  treason  against  the  former,"  they  solemnly 
declared,  "in  the  name  and  on  behalf  of  the  good,  people  of 
Virginia,  that  the  preservation  of  their  dearest  rights  and  lib 
erties,  and  their  security  in  person  and  property,  imperatively " 
demanded  "  the  reorganization  of  the  government  of  the  Com 
monwealth,  and  that  all  acts  of  said  Convention  ....  tending 
to  separate  this  Commonwealth  from  the  United  States,  or  to 
levy  and  carry  on  war  against  them,"  were  "  without  authority 
and  void  ;  and  that  the  offices  of  all  who  "  adhered  to  "  the  said 
Convention  ....  whether  legislative,  executive,  or  judicial," 
were  "  vacated."  The  Convention  then,  by  an  Ordinance,  passed 


172  WEST   VIRGINIA    CONVENTION   OP   1861. 

on  the  19th  of  June,  1861,  provided  for  the  appointment  of  a 
governor,  and  other  State  officers,  to  continue  in  office  six 
months,  or  until  their  successors  were  elected  and  qualified,  and 
for  a  General  Assembly,  to  consist  of  the  members  elected  in 
May  preceding,  and  such  as  might  be  elected  under  the  Ordin 
ances  of  the  Convention,  and  to  hold  their  offices  until  the  end 
of  the  terms  for  which  they  should  be  elected.  The  General 
Assembly  was  required  to  meet  on  the  1st  of  July,  1861,  and 
to  proceed  to  organize  themselves,  as  prescribed  by  existing 
laws,  in  the  respective  branches. 

§  188.  Thus  far  the  proceedings  of  the  Convention  related  to 
the  reconstruction  of  the  State  government.  Now  commenced 
those  having  for  their  object  the  dismemberment  of  the  State. 
On  the  20th  of  August,  1861,  the  Virginia  Convention  passed 
an  Ordinance,  entitled,  "  An  Ordinance  to  provide  for  the  for 
mation  of  a  new  State  out  of  a  portion  of  the  territory  of  this 
State."  The  material  portions  are  as  follows :  — 

"  Whereas,  it  is  represented  to  be  the  desire  of  the  people 
inhabiting  the  counties  hereinafter  mentioned,  to  be  separated 
from  this  commonwealth,  and  to  be  erected  into  a  separate 
State,  and  admitted  into  the  Union  of  States;  ....  The 
people  of  Virginia,  by  their  delegates  assembled  in  Convention 
at  Wheeling,  do  ordain  that  a  new  State,  to  be  called  the  State 
of  Kanawha,  be  formed  and  erected  out  of  the  territory  in 
cluded  within  the  following  limits  "  (describing  the  territory  in 
the  main  afterwards  embraced  in  the  State  of  West  Virginia) ; 
that  "  all  persons  qualified  to  vote  within  the  boundaries  afore 
said,  and  who  shall  present  themselves  at  the  several  places  of 
voting  within  their  respective  counties,  on  the  fourth  Thursday 
in  October  next,  shall  be  allowed  to  vote  on  the  question  of  the 
formation  of  a  new  State ; "  and  that  the  commissioners  con 
ducting  the  election  at  the  several  places  of  voting  shall  "  cause 
polls  to  be  taken  for  the  election  of  delegates  to  a  Convention 
to  form  a  Constitution  for  the  government  of  the  proposed 
State."  The  Ordinance  further  provided  (sec.  6)  that  it  should 
be  the  duty  of  the  Governor,  "  on  or  before  the  15th  day  of 
November  next,  to  ascertain  and  by  proclamation  make  known 
the  result  of  the  said  vote ;  and,  if  a  majority  of  the  votes 
given  within  the  boundaries  "  prescribed,  "  shall  be  in  favor  of 
the  formation  of  a  new  State,  he  shall  so  state  in  his  said  proc- 


WEST  VIRGINIA   CONVENTION   OP   1861.  173 

lamation,  and  shall  call  upon  the  said  delegates  to  meet  in  the 
city  of  Wheeling  on  the  26th  day  of  November  next,  and 
organize  themselves  into  a  Convention  ;  and  the  said  Conven 
tion  shall  submit,  for  ratification  or  rejection,  the  Constitution 
that  may  be  agreed  upon  by  it,  to  the  qualified  voters  within  the 
proposed  State,  to  be  voted  upon  by  the  said  voters,  on  the 
fourth  Thursday  in  December  next."  By  sections  8  and  10  it 
was  required  of  the  Governor  to  lay  before  the  General  Assem 
bly,  at  its  next  meeting,  "  for  their  consent,  according  to  the 
Constitution  of  the  United  States,  the  result  of  said  vote,"  if  a 
majority  should  appear  to  have  voted  in  favor  of  a  new  State, 
and  of  the  proposed  Constitution ;  and  that,  when  the  General 
Assembly  should  have  given  its  consent  to  the  formation  of 
such  new  State,  it  should  forward  to  the  Congress  of  the 
United  States  such  consent,  together  with  an  official  copy  of 
such  Constitution,  with  the  urgent  request  that  the  new  State 
might  be  admitted  into  the  Union. 

§  189.  In  pursuance  of  this  ordinance,  a  vote  of  the  people 
within  the  territory  mentioned  was  taken  on  the  question  of 
forming  a  new  State  and  for  delegates  to  a  Constitutional  Con 
vention,  should  the  vote  favor  the  formation  of  such  State.  The 
election  was  held  on  the  fourth  Thursday  in  October,  1861,  as 
prescribed  in  the  ordinance,  and  resulted  largely  in  favor  of 
forming  a  new  State.  The  delegates  elected  on  the  same  day, 
accordingly,  on  the  proclamation  of  the  Governor,  convened  at 
Wheeling  on  the  26th  of  November,  1861,  the  day  fixed  by  the 
ordinance,  and  during  their  session  framed  a  Constitution,  which 
was  adopted  by  the  people  at  a  general  election  held  on  the  3d 
day  of  May,  1862.1  Three  days  thereafter,  on  the  6th  of  May, 
1862,  an  extra  session  of  the  legislature  of  the  State  of  Vir 
ginia,  as  reconstituted  by  the  Convention,  was  held  at  Wheeling. 
Its  first  Act,  passed  on  the  13th  of  May,  was  entitled  "  an  Act 
giving  the  consent  of  the  legislature  of  Virginia  to  the  forma- 

1  Such  is  the  date  contained  in  the  preamble  to  the  Act  of  Congress  admit 
ting  the  State  conditionally  into  the  Union.  The  day  required  by  the  ordi 
nance  of  the  Convention  for  the  vote  on  the  Constitution  was  the  fourth  Thurs 
day  in  December,  1861.  The  address,  to  their  constituents,  of  the  delegates 
composing  the  Convention,  called  in  1863  to  consider  and  pass  upon  the  amend 
ment  to  the  Constitution  of  the  new  State,  required  by  Congress  to  be  made 
before  the  State  should  be  admitted  into  the  Union,  on  the  other  hand,  speaks 
of  the  ratification  of  the  Constitution  as  having  been  made  in  April,  1862.  I 
am  unable  to  account  for  these  discrepancies. 


174  WEST  VIRGINIA   CONVENTION   OF   1861. 

tion  of  a  new  State  within  the  jurisdiction  of  this  State."  It 
purported  to  give  the  consent  of  the  State  to  the  erection  of 
certain  counties,  named  in  the  Ordinance  above  referred  to,  into 
a  new  State,  to  be  called  West  Virginia  instead  of  Kanawha, 
and  that  to  them  might  be  added  four  other  counties  specified 
in  the  Act,  whenever  the  voters  thereof  should  ratify  and  consent 
to  the  Constitution,  at  an  election  held  for  that  purpose.  It  also 
required  the  Act,  together  with  the  Constitution,  to  be  trans 
mitted  to  the  Senators  and  Representatives  of  Virginia  in  Con 
gress,  and  requested  those  officers  to  use  their  endeavors  to 
obtain  the  consent  of  Congress  to  the  admission  of  the  State 
of  West  Virginia  into  the  Union. 

Here,  then,  after  a  sort,  were  two  of  the  three  requisites  to 
the  legitimacy  of  the  new  State ;  the  consent  of  the  people  to 
be  embraced  within  its  jurisdiction  and  that  of  the  parent  State, 
given  first  by  its  Convention  and  then  by  its  so-called  legisla 
ture,  in  apparent  conformity  to  the  letter  of  the  Federal  Con 
stitution. 

§  190.  Copies  of  the  Act  of  the  Virginia  legislature  and  of 
the  proposed  Constitution  of  the  new  State  having  been  trans 
mitted  to  the  Virginia  delegation  in  Congress,  a  bill  was  intro 
duced  into  that  body  giving  its  assent  to  the  separation.  Objec 
tions  were  entertained,  however,  to  one  provision  of  the  Consti 
tution,  —  that  relating  to  slavery.  The  Convention  which  had 
framed  that  instrument  had  been  about  equally  divided  as  to 
the  propriety  of  inserting  in  the  Constitution  a  clause  providing 
for  gradual  emancipation.  Some  desired  to  avoid  the  conten 
tion  the  agitation  of  the  subject  would  inevitably  engender, 
while  others  thought  that  without  the  insertion  of  such  a  clause 
the  consent  of  Congress  would  not  be  given  to  the  separation 
from  the  parent  State.  Under  these  circumstances  a  compromise 
clause  had  been  agreed  on,  which  had  received  the  unanimous 
vote  of  the  Convention  and  been  inserted  in  the  Constitution. 
It  provided  simply  that  no  slave  should  be  brought,  nor  free  per 
son  of  color  be  permitted  to  come,  into  the  State  for  permanent 
residence.  This  Constitution,  as  we  have  seen,  was  ratified  by 
the  people.  This  is  the  clause  to  which,  when  the  Constitution 
was  considered  in  Congress,  exception  was  taken,  and  the  result 
of  the  action  of  that  body  was,  that  the  proposed  State  was 
constrained  to  substitute  for  the  clause  in  question  another,  pro- 


WEST  VIRGINIA   CONVENTION   OF   1861.  175 

vicling  for  gradual  emancipation.  On  the  31st  of  December, 
1862,  an  Act  was  passed  by  Congress  entitled,  "An  Act  for  the 
Admission  of  West  Virginia  into  the  Union,  and  for  other  pur 
poses,"  which,  after  reciting  the  proceedings  I  have  before  consid 
ered,  and  that  both  the  Convention  and  the  legislature  of  Virginia 
had  requested  that  the  new  State  should  be  admitted  into  the 
Union,  declared  the  consent  of  Congress,  that  the  forty-eight 
counties  named  in  the  Act  should  be  formed  into  a  separate  and 
independent  State,  and  admitted  as  such  into  the  Union,  pro 
vided,  that  said  Act  should  not  take  effect  until  after  a  proclama 
tion  of  the  President  of  the  United  States  should  be  issued, 
stating  the  fulfilment  of  the  following  condition,  viz.,  —  the  peo 
ple  of  the  proposed  State,  by  their  Convention,  were  to  insert  in 
the  Constitution,  in  lieu  of  the  compromise  clause,  the  following 
section :  — 

"  The  children  of  slaves,  born  within  the  limits  of  the  State 
after  the  fourth  of  July,  eighteen  hundred  and  sixty-three,  shall 
be  free ;  and  all  the  slaves  within  the  said  State,  who  shall,  at 
the  time  aforesaid,  be  under  the  age  of  ten  years,  shall  be  free 
when  they  arrive  at  the  age  of  twenty-one  years ;  and  all  slaves 
over  ten  and  under  twenty-one  years  shall  be  free  when  they  arrive 
at  the  age  of  twenty-five  years ;  and  no  slave  shall  be  permitted 
to  come  into  the  State  for  permanent  residence  therein." 

This  provision  was,  by  the  Convention,  on  the  18th  of  Feb 
ruary,  1863,  substituted  for  the  one  objected  to  by  Congress,  and 
the  Constitution,  as  thus  amended,  was  thereupon  submitted  a 
second  time  to  the  people  for  ratification  or  rejection.  The  elec 
tion  for  that  purpose  was  held  on  the  26th  of  March,  1863,  and 
the  result  was  that  it  was  ratified  by  a  very  large  majority. 

As  required  by  the  Act  of  Congress,  this  result  having  been 
certified,  under  the  hand  of  the  President  of  the  Convention,  to 
the  President  of  the  United  States,  the  latter  issued  his  procla 
mation  announcing  the  fact,  and  West  Virginia,  sixty  days 
thereafter,  is  supposed,  according  to  the  terms  of  the  Act,  to 
have  become  a  State  in  the  Union. 

§  191.  Whether  the  erection  of  West  Virginia  into  a  sepa 
rate  State  was  a  constitutional  act  or  not,  depends  on  the  ques 
tion  whether  the  so-called  legislature  of  Virginia,  which  met  at 
Wheeling  on  the  6th  of  May,  1862,  and  passed  the  Act  purport 
ing  to  give  the  consent  of  Virginia  to  its  own  dismemberment, 


176  WEST  VIRGINIA   CONVENTION    OF    1861. 

was,  in  law,  the  legislature  of  the  State  of  Virginia.  If  it  was 
such,  obviously  the  three  conditions  required  by  the  Federal 
Constitution,  and  by  the  principles  of  our  political  system,  for 
the  valid  dismemberment  of  a  State,  namely,  the  consent  of  the 
legislature  of  the  State  concerned,  of  the  Congress,  and  of  the 
inhabitants  of  the  proposed  new  State,  were  all  fulfilled. 

That  that  legislature  was  the  lawful  legislature  of  Virginia  is, 
in  my  judgment,  beyond  question. 

1.  It  should  be  observed,  that  the  legal  character  of  that  body 
is  not  to  be  determined  by  that  of  the  Convention  which  called 
it  together  or  constituted  it.  In  the  initiation  and  in  the  pro 
ceedings  of  that  Convention  there  was  doubtless,  if  not  a  revo 
lutionary  taint,  at  least  an  irregularity.  But  it  is  clear  that  an 
institution  or  a  form  of  government,  ordained  by  a  Revolutionary 
Convention,  may,  by  a  formal  ratification,  or  even  by  the  acqui 
escence  of  the  proper  authority,  become  legal  and  valid.1  Were 
not  the  General  Assemblies  established  in  the  original  thirteen 
States,  by  their  first  Constitutions,  regarded  from  the  point  of 
view  of  "  United  America,"  legal  Assemblies  ? 

§  192.  2.  Properly  considered,  then,  even  if  judged  by  the 
principles  of  public  law  alone,  the  question  of  the  legality  of 
the  Virginia  legislature  is  one  of  general  and  continuous  recog 
nition  as  such.  Under  the  Federal  Constitution,  while  the  ques 
tion  is  of  the  same  nature,  the  scope  of  the  recognition  required 
to  stamp  that  legislature  as  legal  is  narrowed  to  that  of  the 
United  States.  It  is  not  necessary,  in  other  words,  that,  to  be 
legal  and  valid,  that  legislature  should  present  itself  backed  by 
a  major  part  of  the  citizens  of  the  State.  It  is  enough  if  it 
show  itself  to  be  a  branch  of  a  de  facto  government,  in  force  in 
Virginia,  and  have  upon  its  front  the  stamp  of  Federal  recognition. 

That  this  is  a  correct  view  of  the  case,  follows  from  the  de 
cision  of  the  Supreme  Court  of  the  United  States  in  the  case 
of  Luther  v.  Borden,  involving  the  legality  of  the  so-called 
"People's  Constitution"  and  government  of  Rhode  Island.2 

The  fourth  section  of  the  fourth  Article  of  the  Constitution 
of  the  United  States  provides,  that  "the  United  States  shall 

1  See  §  187,  ante.     See  also  Am.  Law  Reg.,  Vol.  I.  new  series,  pp.  651-660, 
case  of  Williamson  v.  Jones. 

2  7  How.  (U.  S.)  R.  1.    For  a  full  account  of  the  proceedings  from  which 
this  case  arose,  see  post,  §§  226-228. 


WEST  VIRGINIA    CONVENTION    OF    1861.  177 

guarantee  to  every  State  in  this  Union  a  republican  form  of 
government,  and  shall  protect  each  of  them  against  invasion  ; 
and,  on  application  of  the  legislature,  or  of  the  executive  (when 
the  legislature  cannot  be  convened),  against  domestic  violence." 

The  "  people's  party,"  constituting,  as  it  was  claimed,  the 
majority  of  all  the  adult  male  citizens  of  Rhode  Island,  having, 
in  defiance  of  the  Charter  government  of  that  State,  framed  and 
adopted  a  Constitution  and  form  of  government,  and  attempted 
forcibly  to  put  the  same  in  operation,  the  question  of  the  legality 
of  that  Constitution  and  government,  as  against  that  existing 
under  the  Charter  of  Charles  II.,  came  finally  to  be  passed  upon 
by  the  Supreme  Court  of  the  United  States,  in  the  case  referred 
to.  It  appearing  to  the  court,  as  a  part  of  the  history  of  the  case, 
that  the  Governor  of  Rhode  Island,  under  the  Charter  govern 
ment,  had  applied  to  the  President  of  the  United  States  for  the 
protection  guaranteed  in  the  section  specified,  and  that  the  Presi 
dent  had  promised  the  same,  and  made  arrangements  to  call  out 
the  militia  to  sustain  the  Charter  government,  should  it  become 
.necessary  —  thus,  by  an  authentic  act,  recognizing  such  govern 
ment  as  lawful  and  valid  —  it  was  held,  Judge  Taney  delivering 
the  opinion  of  the  court,  that  this  act  of  federal  recognition,  done 
in  pursuance  of  the  Constitution  and  laws  of  the  United  States, 
was  decisive  as  to  the  legality  of  the  Charter  government,  and 
as  to  the  illegality  of  that  of  the  "  people's  party." 

The  court  say  :  — 

"Under  this  article  of  the  Constitution"  (Art.  IV.  Sec.  4), 
"it  rests  with  Congress  to  decide  what  government  is  the  estab 
lished  one  in  a  State  ;  for,  as  the  United  States  guarantees  to 
each  State  a  republican  government,  Congress  must  decide 
what  government  is  established  in  the  State  before  it  can  deter 
mine  whether  it  is  republican  or  not ;  and  when  the  senators 
and  representatives  of  a  State  are  admitted  into  the  councils  of 
the  Union,  the  authority  of  the  government  under  which  they 
are  appointed,  as  well  as  its  republican  character,  is  recognized 
by  the  proper  constitutional  authority,  and  its  decision  is  bind 
ing  on  every  other  department  of  the  government,  and  could  not 
be  questioned  in  a  judicial  tribunal. 

"  So,  too,  as  relates  to  the  clause  of  the  Constitution,  providing 
for  cases  of  domestic  violence,  it  rested  with  Congress  to  deter 
mine  upon  the  means  proper  to  be  adopted  to  fulfil  this  guar- 
12 


178  WEST   VIRGINIA    CONVENTION   OF    1861. 

antee.  They  might,  if  they  had  deemed  it  most  advisable  to 
do  so,  have  placed  it  in  the  power  of  a  court  to  decide  when 
the  contingency  had  happened  which  required  the  Federal  Gov 
ernment  to  interfere.  But  Congress  thought  otherwise ;  and  by 
the  Act  of  February  28,  1795,  provided  that,  in  case  of  an  insur 
rection  in  any  State  against  the  government  thereof,  it  shall  be 
lawful  for  the  President  of  the  United  States,  on  application  of 
the  legislature  of  such  State,  or  of  the  executive  (when  the  leg 
islature  cannot  be  convened),  to  call  forth  such  numbers  of  the 
militia  of  any  other  State  or  States,  as  may  be  applied  for,  as  he 
may  judge  sufficient  to  suppress  such  insurrection.  This  power, 
conferred  upon  the  President  by  the  Constitution  and  laws  of 
the  United  States,  belongs  to  him  exclusively.  The  President 
has  acted  in  the  case  of  Rhode  Island ;  not,  it  is  true,  by  actu 
ally  calling  out  the  militia,  on  the  application  of  the  Governor 
of  Rhode  Island,  under  the  Charter  government,  but  by  recog 
nizing  him  as  the  executive  of  the  State,  by  taking  measures 
to  call  out  the  militia  to  support  his  authority,  if  it  should  be 
found  necessary  for  the  general  government  to  interfere.  This 
interference  by  the  President,  by  announcing  his  determination, 
was  as  efficient  as  if  the  militia  had  been  assembled  under  his 
orders ;  it  ought  to  be  equally  authoritative ;  and  no  court  of 
the  United  States  would,  knowing  this  decision,  be  justified  in 
recognizing  the  opposing  party  as  the  lawful  government."1 

§  193.  Under  whichever  clause  of  the  constitutional  provision 
the  case  of  Virginia  should  be  thought  to  come,2  the  conditions 
necessary  to  bring  it  within  the  principles  of  this  decision,  were 
fulfilled. 

1.  By  the  first  clause,  the  United  States  are  required  to  guar 
antee  to  every  State  in  the  Union  a  Republican  form  of  govern 
ment.  Such  a  guarantee  involves  an  undertaking,  first,  that 
some  government,  acting  in  harmony  with  that  of  the  Union, 

1  Luther  v.  Borden,  7  How.  (U.  S.)  R.  44. 

2  Virginia,  through  her  Governor,  elected  in  pursuance  of  an  Ordinance  of 
the  Wheeling  Convention,  of  June  11,  1861,  formally  demanded  of  the  Presi 
dent  the  fulfilment  of  the  Constitutional  guarantee  in  her  favor,  and  the  Presi 
dent  admitted  the  obligation,  and  promised  his  best  efforts  to  fulfil  it.     See  the 
Ann.  Cyclop,  for  1861,  Art.  "Virginia,  Western"  citing  a  letter  of  Attorney-Gen 
eral  Bates.     The  call  upon  the  President,  instead  of  upon  Congress,  would  indi 
cate  that  Virginia  placed  her  case  under  the  second  clause  of  the  Constitutional 
guarantee.     See  §  192,  ante,  opinion  of  Judge  Taney. 


WEST   VIRGINIA    CONVENTION    OF    1861.  179 

shall  be  established  in  each  State  thereof ;  and,  secondly,  that 
the  government  so  established,  shall  conform  to  our  general 
republican  scheme. 

If,  then,  previously  to  the  time  when  Congress  passed  the  Act 
admitting  West  Virginia  into  the  Union,  Virginia  be  regarded 
either  as  having  no  legitimate  government  at  all,  or  as  having 
one  or  more  whose  conformity  to  republican  standards  was  de 
nied,  Congress,  by  the  very  act  of  admitting  into  the  Union  a 
new  State,  whose  formation  was  necessarily  based  on  the  con 
sent  of  some  Virginia  legislature,  recognized  the  consenting 
legislature  as  part  of  a  legal  and  valid  government.  Such  a 
recognition  would  be  implied  in  that  act.  But  it  is  not  neces 
sary  to  rest  the  case  upon  an  implied  recognition.  .  The  Act 
admitting  West  Virginia  into  the  Union  expressly  refers  to,  and 
recognizes  as  a  lawful  body,  the  legislature  of  Virginia  in  ques 
tion.  In  the  preamble,  there  appears  the  following  recital :  — 
"  And  whereas,  the  legislature  of  Virginia^  by  an  Act  passed  on 
the  13th  day  of  May,  1862,  did  give  its  consent  to  the  formation 
of  a  new  State  within  the  jurisdiction  of  the  said  State  of  Vir 
ginia,"  &c. 

2.  If,  on  the  other  hand,  the  case  of  Virginia  be  brought  within 
the  latter  clause  of  the  constitutional  provision,  requiring  the 
United  States  to  guarantee  the  States  against  domestic  violence, 
or  against  invasion,  the  repeated  acts  of  the  United  States  in 
all  its  departments,  recognizing  the  loyal  government  of  Virginia 
of  which  the  legislature  in  question  was  a  part,  as  an  existing 
State  government,  stamped  that  government  and  legislature  as 
legal  and  valid.  For  over  four  years  after  the  establishment  of 
the  loyal  government  of  Virginia,  the  President  of  the  United 
States  was  engaged,  in  concert  with  that  government,  in  ex 
pelling  from  her  borders  the  rebel  invaders — during  two  years 
of  that  time,  the  senators  and  representatives  of  the  new  State 
of  West  Virginia,  founded  upon  its  consent,  as  upon  that  of  a 
valid  government,  actually  sitting  in  Congress. 

For  these  reasons  it  is  impossible  to  deny  that  the  legislature 
of  Virginia  in  question  was  a  lawful  legislature.  What  has 
been  uniformly  recognized  as  legal  by  the  legislative  and  execu 
tive  branches  of  the  United  States  government,  by  the  Constitu 
tion  and  laws  made  the  exclusive  judges  of  that  fact,  and  to 
whose  decision  on  the  question,  the  Supreme  Court  of  the  United 


180  CONVENTIONS   TO    FRAME   CONSTITUTIONS 

States  admits  itself  bound  to  conform,  must  be  set  down  as 
legal. 

§  194.  2.  The  second  variety  of  Conventions  assembled  since 
the  establishment  of  the '  Federal  Constitution,  consists  of  such 
Conventions  as  have  been  called  to  frame  Constitutions  for  new 
States,  to  be  formed  out  of  territory  of  the  United  States,  organ 
ized  under  its  authority,  or  acquired  in  an  organized  condition 
from  foreign  states. 

For  convenience,  this  variety  may  be  subdivided  into  two 
others,  comprising  — 

(a).  Such  Conventions  as  have  been  assembled  regularly,  in 
pursuance  of  enabling  Acts  of  Congress;  and 

(b).  Such  as  have  been  convened  by  the  inhabitants,  or  the 
temporary  governments  of  organized  Territories,  irregularly,  with 
out  enabling  Acts  of  Congress. 

These  will  be  considered  in  their  order. 

§  195.  (a).  Since  the  establishment  of  the  Federal  Constitu 
tion,  in  March,  1789,  eighteen  new  States  have  been  formed  out 
of  Federal  territory,  and  admitted  into  the  Union.  Conventions, 
concerned  in  framing  the  first  Constitutions  of  twelve  of  these 
States,  have  been  regularly  assembled  under  the  authority  of 
prior  enabling  Acts.  These  are  those  of  Ohio,  Louisiana,  Indi 
ana,  Mississippi,  Illinois,  Alabama,  Missouri,  Texas,  the  first  of 
the  two  Conventions  of  Wisconsin,  that  of  Minnesota,  the  third 
of  the  three  Conventions  of  Kansas,  and  the  second  of  the  two 
Conventions  of  Nevada. 

Respecting  these  Conventions,  a  detailed  statement  of  facts  is 
deemed  unnecessary.  I  shall,  therefore,  confine  myself  to  a  brief 
reference  to  the  principles  by  which  their  regularity  is  to  be 
determined,  and  to  a  survey,  equally  brief,  of  the  most  general 
facts  that  preceded  their  call  and  assembling. 

According  to  the  principles  developed  in  the  second  chapter 
of  this  treatise,  the  sovereign  authority  over  the  Territories, 
whether  organized  or  unorganized,  resides  in  the  people  of  the 
United  States;  but  while  that  is  true,  the  exercise  of  this  sov 
ereign  authority  has,  by  the  Constitution  of  the  Union,  been 
committed  to  the  Congress  of  the  United  States.  To  these 
principles,  universally  recognized,  add  this  other,  that  it  is  only 
the  sovereign  political  body,  acting  through  its  representatives, 
by  whom  the  Constitution  of  government  existing  in  any  State 


FOR   TERRITORIES    OF   THE    UNITED    STATES.  181 

or  Territory,  can  be  changed  or  abolished,  or  the  rights  of  terri 
tory  or  of  jurisdiction  belonging  to  such  sovereign  body,  modi 
fied  or  abridged,  and  we  have  the  key  to  the  whole  subject  of 
Conventions  in  the  Territories  of  the  United  States.  To  be 
legitimate,  a  Convention,  called  to  erect  a  State  out  of  Federal 
territory,  or  to  frame  for  it  a  Constitution,  must  have  been 
assembled  with  the  knowledge  and  consent  of  Congress ;  to  be 
regular,  it  must  have  been  called  by  a  formal  Act  of  that  body  ; 
and  to  give  to  the  fruit  of  its  labors  any  force  or  vigor  whatever 
as  law,  it  must  submit  it  to  the  same  assembly,  as  the  principal 
depositary  of  the  sovereign  rights  of  the  Union,  for  ratification 
or  rejection. 

Tested  by  these  principles,  the  Conventions  that  framed  the 
Constitutions  under  which  the  States  above  named  were  ad 
mitted  into  the  Union,  are  believed  to  have  been  strictly  regular 
and  legitimate. 

The  course  of  proceeding  uniformly  pursued  in  such  cases 
has  been  for  the  inhabitants  of  the  Territory  desiring  to  be 
transformed  into  a  State,  or  for  some  branch  of  the  Territorial 
government,  to  move  the  matter  in  Congress  by  petitions  or 
memorials,  and  then  for  Congress,  if  the  erection  of  a  State  be 
deemed  proper  and  expedient,  to  pass  an  Act  expressly  author 
izing  the  assembling  of  a  Convention  of  delegates  to  pass  upon 
the  question  of  State  organization,  and,  if  that  should  be  de 
sired,  to  frame  a  Constitution. 

In  all  the  Acts  of  this  kind,  commonly  known  as  "  enabling 
Acts,"  conditions  are  imposed,  upon  compliance  with  which  either 
the  proposed  State  is  in  advance  declared  to  be  admitted  into  the 
Union,  or  the  President  is  authorized  to  issue  his  proclamation 
announcing  such  compliance,  and  declaring  the  State  thereupon 
to  be  admitted  into  the  Union. 

In  nearly  all  the  States  embraced  in  this  class,  the  final  act, 
following  after  the  formation  of  the  Constitution  according  to 
the  enabling  Act,  and  the  submission  of  the  same  to  the  judg 
ment  of  Congress,  has  been  the  passage  by  the  latter  of  a  for 
mal  Act  or  resolution,  reciting  the  proceedings  of  the  Conven 
tion,  and  declaring,  first,  that  the  Constitution  framed  for  the 
proposed  State  is  republican  in  form ;  and,  secondly,  that  the 
State  is  thereby  admitted  into  the  Union  on  a  footing  of 
equality  with  the  original  States.  In  Missouri  and  Nevada,  the 


182          CONVENTIONS    ASSEMBLED   WITHOUT   ENABLING   ACTS. 

final  act  was  a  proclamation  by  the  President  of  the  United 
States,  made  in  pursuance  of  a  previous  Act  or  resolution  of 
Congress.1 

§  196.  (b).  Belonging  to  the  remaining  variety  of  Conven 
tions  concerned  in  framing  Constitutions  for  new  States  to  be 
formed  out  of  Federal  territory,  comprising  such  as  have  been 
called  irregularly,  without  enabling  Acts  of  Congress,  there 
have  been  thirteen,  assembled  in  nine  different  States,  namely, 
—  .the  three  Conventions  of  Michigan,  held  in  1835  and  1836, 
those  of  Arkansas  and  Florida,  held  respectively  in  1836  and 
1839,  the  two  of  Iowa  of  1844  and  1846,  that  of  Wisconsin 
of  1847,2  that  of  California,  the  first  two  of  Kansas  of  1855  and 
1857,  that  of  Oregon,  and  the  first  of  the  two  Conventions 
of  Nevada. 

These  various  Conventions  will  be  considered  with  some  par 
ticularity,  beginning  with  those  of  Michigan,  the  first  in  point 
of  time. 

Before  entering,  however,  upon  this  examination,  it  will  be 
useful  to  bring  into  view  certain  Acts  of  Congress  and  certain 
treaties,  whose  provisions  have  been  supposed  to  establish,  if  not 
the  regularity  of  those  Conventions,  at  least  the  essential  right- 
fulness  of  their  proceedings,  in  attempting,  without  the  formal 
consent  of  Congress,  to  erect  their  several  Territories  into  States. 

We  have  already  seen,  in  considering  the  first  Convention 
of  Tennessee,  that  that  Territory  claimed  the  right  of  being  ad 
mitted  into  the  Union  on  the  ground  that  she  in  fact  possessed 

1  For  the  several  enabling  Acts  in  these  cases,  see  2  U.  S.  Stat.  at  Large, 
173-175  ;  id.  641-643  ;  3  do.  289-291  ;  id.  428-430  ;  id.  489-492  ;  id.  546-548 ; 
5  do.  797;  9  do.  56-58;  11  do.  166;  id.  269-272;  and  Act  of  March  21,  1864, 
not  yet  published  with  Statutes  at  Large. 

2  The  first  Convention  of  Wisconsin,  held  in  1846,  met  in  pursuance  of  an 
enabling  Act  of  Congress ;  the  Convention  framed  a  Constitution,  which,  being 
submitted  to  the  people  in  April,  1847,  was  rejected.     In  the  mean  time,  prob 
ably  expecting  that  the  people  would  adopt  the  Constitution,  Congress,  on  the 
3d  of  March,  1847,  passed  an  Act  admitting  the  State  into  the  Union,  upon  con 
dition  that  the  Constitution  should  be  ratified  by  the  people.     The  rejection  by 
the  people  left  the  Territory  without  a   Constitution,  and  outside  the  Union. 
Whether  it  left  it  with  an  enabling  Act  for  a  second  Convention  is,  in  my  judg 
ment,  doubtful.     I  have  accordingly  classed  the  second  Convention,  called  by 
the  Legislative  Assembly  of  Wisconsin  in  October,  1847,  to  meet  in  the  follow 
ing  December,  by  which  the  present  Constitution  of  the  State  was  framed,  with 
those  called  without  enabling  Acts. 


CONVENTIONS   ASSEMBLED   WITHOUT   ENABLING  ACTS.         183 

a  population  of  sixty  thousand  free  inhabitants,  basing  her 
claim  on  a  condition  of  the  deed  of  cession  from  North  Caro 
lina  to  the  United  States,  specially  accepted  by  the  latter,  to  the 
effect  that  the  provisions  of  the  Ordinance  of  1787,  entitling  the 
Territories  northwest  of  the  Ohio  to  admission  into  the  Union, 
so  soon  as  they  should  have  sixty  thousand  free  inhabitants, 
should  apply  to  the  territory  thus  ceded.  The  provisions  of  the 
Ordinance  referred  to  were  contained  in  Article  V.  of  that  part  of 
it  entitled  the  "  Compact,"  and  were  substantially  as  follows  :  — 

After  dividing  the  territory  northwest  of  the  Ohio,  now  con 
stituting  the  five  States  of  Ohio,  Indiana,  Illinois,  Michigan, 
and  Wisconsin,  into  three  prospective  States,  by  lines  corre 
sponding  in  the  main  with  the  east  and  west  boundaries  of 
Ohio,  Indiana,  and  Illinois,  but  extending  to  the  Canadian 
frontier,  with  a  proviso  that  they  might,  if  Congress  should 
deem  it  expedient,  be  made  into  five  States,  the  Ordinance  pro 
ceeds  :  — "  And  whenever  any  of  the  said  States  shall  have 
sixty  thousand  free  inhabitants  therein,  such  State  shall  be 
admitted,  by  its  delegates,  into  the  Congress  of  the  United 
States,  on  an  equal  footing  wii?h  the  original  States  in  all  re 
spects  whatever,  and  shall  be  at  liberty  to  form  a  permanent 
Constitution  and  State  government :  Provided,  The  Constitu 
tion  and  government  so  to  be  formed  shall  be  republican,  and  in 
conformity  to  the  principles  contained  in  these  articles,  and  so 
far  as  it  can  be  consistent  with  the  general  interest  of  the  Con 
federacy,  such  admission  shall  be  allowed  at  an  earlier  period, 
and  when  there  may  be  a  less  number  of  free  inhabitants  in  the 
State  than  sixty  thousand." 

The  provisions  of  this  Ordinance,  framed  under  the  Confeder 
ation,  were  continued  in  force  after  the  adoption  of  the  present 
Constitution  of  the  United  States,  by  an  Act  of  the  first  Con 
gress,  that  met  under  the  latter. 

Whatever  rights,  therefore,  were  secured  by  this  Ordinance, 
belonged  equally  to  the  three  States,  or  the  five  States,  as  the 
case  might  be,  into  which  the  territory  covered  by  it  should  be 
divided. 

§  197.  The  States  of  Arkansas,  Iowa,  and  Kansas,  were 
framed  out  of  territory  acquired  by  the  United  States  from 
France  by  the  treaty  of  April  30,  1803,  the  third  article  of 
which  contained  the  following  provision  :  — 


184          CONVENTIONS   ASSEMBLED   WITHOUT   ENABLING   ACTS. 

"  The  inhabitants  of  the  ceded  territory  shall  be  incorporated 
in  the  Union  of  the  United  States,  and  admitted  as  soon  as 
possible,  according  to  the  principles  of  the  Federal  Constitution, 
to  the  enjoyment  of  all  the  rights,  advantages,  and  immunities 
of  citizens  of  the  United  States." l 

In  like  manner,  by  the  treaty  of  February  22,  1819,  between 
the  United  States  and  his  Catholic  Majesty,  the  King  of  Spain, 
by  which  the  territory  known  as  East  and  West  Florida  was 
ceded  by  the  latter  to  the  former,  it  was  provided  as  follows  :  — 

"  Article  VI.  The  inhabitants  of  the  territory  which  his  Cath 
olic  Majesty  cedes  to  the  United  States  by  this  treaty,  shall  be 
incorporated  in  the  Union  of  the  United  States,  as  soon  as  may 
be  consistent  with  the  principles  of  the  Federal  Constitution, 
and  admitted  to  the  enjoyment  of  all  the  privileges,  rights,  and 
immunities  of  citizens  of  the  United  States."2 

Finally,  by  the  treaty  between  the  United  States  and  Mexico 
of  February  2,  1848,  by  which  the  former  acquired  California 
and  New  Mexico,  it  was  stipulated  on  behalf  of  the  inhabitants 
of  the  ceded  territories,  Article  IX.,  as  follows  :  —  • 

"  Mexicans  who,  in  the  territories  aforesaid,  shall  not  preserve 
the  character  of  citizens  of  the  Mexican  Republic,  conformably 
with  what  is  stipulated  in  the  preceding  article,  shall  be  incor 
porated  into  the  Union  of  the  United  States,  and  be  admitted 
at  the  proper  time  (to  be  judged  of  by  the  Congress  of  the 
United  States)  to  the  enjoyment  of  all  the  rights  of  citizens  of 
the  United  States,  according  to  the  principles  of  the  Constitu 
tion,"  &c. 3 

Covered  by  the  provisions  of  this  treaty  were  the  States  of 
California  and  Nevada,  not  to  mention  the  Territories  carved  out 
of  the  ceded  Mexican  territory,  but  not  yet  admitted  into  the 
Union,  —  Utah,  Colorado,  New  Mexico,  and  Arizona. 

Thus,  of  the  Territories  comprised  in  the  list  now  under  con 
sideration,  which  have  proceeded  irregularly  to  form  themselves 
into  States,  all,  except  Oregon,  were  acquired  by  the  United 
States  under  deeds  or  treaties  of  cession  containing  stipulations 
binding  the  latter  to  admit  them  sooner  or  later  into  the  Union, 
either  when  they  should  have  come  to  have  a  population  of  sixty 

1  U.  S.  Sfat.  at  Large,  Vol.  VIII.  pp.  200-202. 

2  Id.  pp.  252-258. 

3  Do.  Vol.  IX.  pp.  922-930. 


MICHIGAN   CONVENTION    OF   1835.  185 

thousand  free  inhabitants,  or  as  soon  as  it  should  be  consistent 
with  the  principles  of  the  Federal  Constitution.  The  handle 
made  of  these  stipulations  will  be  seen  when  we  come  to  con 
sider  the  Conventions  of  the  States  named,  separately,  to  which 
I  now  pass,  beginning  with  those  of  the  State  of  Michigan. 

§  198.  The  people  of  the  Territory  of  Michigan  having,  in 
1832,  by  a  vote  of  a  decided  majority,  determined  to  apply  for  ad 
mission  into  the  Union,  the  Legislative  Council  of  the  Territory, 
at  their  next  succeeding  session,  memorialized  Congress  on  the 
subject.  A  bill  was  accordingly  reported,  in  February,  1833, 
for  an  enabling  Act  for  that  purpose  ;  but,  owing  to  the  opposi 
tion  of  Ohio,  growing  out  of  disputes  about  boundaries,  the  bill 
was  not  passed.  On  the  6th  of  September,  1834,  the  Legislative 
Council  of  Michigan  passed  an  Act,  on  the  suggestion  of  the 
acting  Governor  of  the  Territory,  Stevens  L.  Mason,  providing 
for  taking  "a  census  of  the  inhabitants  of  the  Peninsula,  as  well 
as  of  those  west  of  Lake  Michigan,"  with  a  view,  if  the  popu 
lation  should  be  found  sufficient,  to  take  steps  for  the  erection 
of  a  State  out  of  said  Territory.  The  result  of  the  census  was, 
that  there  were  found  to  be  within  the  limits  of  the  Territory, 
eighty-seven  thousand  two  hundred  and  seventy-three  free  in* 
habitants.  Thereupon,  the  same  body,  on  the  26th  of  January, 
1835,  passed  an  Act,  entitled,  "  An  Act  to  enable  the  People  of 
Michigan  to  form  a  Constitution  and  State  Government,"  in 
pursuance  of  which  delegates  were  elected,  and  met  in  Conven 
tion  at  Detroit  on  the  llth  of  May,  1835.  By  this  Convention 
a  Constitution  was  framed  and  submitted  to  the  people  for 
adoption  or  rejection,  at  an  election  held  on  the  5th  of  October 
following,  when  it  was  ratified  by  a  decisive  vote  of  over  five  to 
one,  and  thereupon  a  State  government  in  all  its  departments 
was  organized. 

By  section  10  of  the  Schedule  appended  to  the  Constitution, 
it  was  made  the  duty  of  the  President  of  the  Convention,  in 
case  of  its  ratification,  to  transmit  a  copy  of  it,  together  with 
copies  of  the  Act  of  the  Legislative  Council  calling  the  Conven 
tion,  and  of  so  much  of  the  census  of  the  Territory  as  should 
exhibit  the  number  of  free  inhabitants  in  the  portion  thereof 
comprised  within  the  limits  of  the  proposed  State,  to  the  Presi 
dent  of  the  United  States,  with  a  request  for  admission  into  the 
Union.  The  limits  of  the  State,  as  prescribed  by  the  Legis- 


186  MICHIGAN   CONVENTION   OF   1835. 

lative  Council  in  its  Act  calling  the  Convention,  as  well  as  by 
the  Convention,  embraced  a  strip  of  territory  now  belonging  to 
the  State  of  Ohio,  being  so  much  of  that  State  as  lies  between 
its  north  line,  as  at  present  established,  and  an  east  and  west 
line,  running  through  the  southerly  point  of  Lake  Michigan.  It 
should  be  also  noted  that  the  proposed  State  did  not  embrace 
the  whole  of  the  Territory  of  Michigan,  as  established  by  the 
Acts  of  Congress  of  January  11,  1805,  and  April  18,  1818,  but 
only  that  part  of  the  Territory  lying  between  the  Lakes  Michi 
gan  and  Huron,  extending  south  as  far  as  to  an  east  and  west 
line  running  through  the  southerly  point  of  Lake  Michigan  — 
thus  cutting  off  that  large  tract  forming  a  part  of  the  Michigan 
Territory,  which  afterwards  constituted  the  Wisconsin  Territory. 
§  199.  On  the  9th  of  December,  1835,  in  the  first  week  of  the 
session,  President  Jackson  called  the  attention  of  Congress  to 
the  application  of  Michigan  for  admission,  in  a  special  message, 
in  which,  without  expressing  any  opinion  on  its  merits,  he  based 
the  claim  of  that  State  upon  the  provision  of  the  Ordinance  of 
1787,  above  referred  to.  The  matter  coming  up  for  considera 
tion,  objection  was  made  to  the  admission  with  the  boundaries 
specified  in  the  Constitution,  and  exception  was  taken  to  the 
irregular  proceedings  of  the  Legislative  Council  in  calling  the 
Convention  without  the  authorization  of  Congress. 1  A  bill, 

1  The  subject  was  specially  called  to  the  attention  of  the  Senate  by  a  me 
morial  from  "  the  Senate  and  House  of  Representatives  of  the  State  of  Michi 
gan,"  relating  to  the  right  to  be  admitted  into  the  Union.  On  motion  of  Mr. 
Hendricks,  of  Indiana,  this  memorial  was  refused,  accompanied  by  a  declara 
tion  "  that  the  Senate  regard  the  same  in  no  other  light  than  as  the  voluntary 
act  of  private  individuals."  Mr.  Ruggles,  of  Maine,  moved  to  strike  out  this 
declaration  ;  and,  on  the  yeas  and  nays,  his  motion  was  rejected  by  a  vote  of 
30  to  12.  Thus  the  Senate  solemnly  determined  that  the  so-called  "  Legislature 
of  Michigan  "  was  a  mere  assembly  of  private  individuals.  Again,  the  bill  for 
the  admission  of  Michigan  into  the  Union,  when  first  reported  by  the  committee, 
provided,  that  the  assent  to  the  boundaries  of  the  State,  required  by  the  third 
section,  should  be  given  by  their  senators  and  representatives  in  Congress,  and 
by  the  legislature  of  the  State.  Senator  Wright,  of  New  York,  moved  to  strike 
out  this  provision,  and  to  insert  in  its  stead,  that  the  assent  required  should  be 
given  by  "  a  Convention  of  delegates  elected  by  the  people  of  the  said  State  for 
the  sole  purpose  of  giving  the  assent  herein  required."  This  motion  was  car 
ried  by  an  unanimous  vote  of  the  Senate,  —  again  indicating  the  opinion  of 
that  body,  that  the  so-called  State  organization  was  a  nullity,  and  its  supposed 
officers  and  representatives  entitled  to  no  consideration.  See  Speech  of  James 
Buchanan,  in  Benton's  Abr.  Deb.  in  Cong.,  Vol.  XIII.  p.  80. 


MICHIGAN   CONVENTIONS   OF    1836.  187 

however,  was  finally  carried,  admitting  the  State  into  the  Union, 
but  requiring  a  modification  of  its  boundaries.  By  this  Act,  en 
titled,  "  An  Act  to  establish  the  Northern  Boundary  Line  of  the 
State  of  Ohio,  and  to  provide  for  the  admission  of  the  State  of 
Michigan  into  the  Union,  upon  the  conditions  therein  expressed," 
approved  June  15,  1836,  it  was  provided,  as  follows  :  — 

"  That  the  Constitution  and  State  government  which  the 
people  of  Michigan  have  formed  for  themselves  be,  and  the 
same  is  hereby,  accepted,  ratified,  and  confirmed,  and  that  the 

State  of  Michigan  is  hereby  admitted  into  the  Union 

Provided  always^  and  this  admission  is  upon  the  express  condi 
tion,  that  the  said  State  shall  consist  of,  and  have  jurisdiction 
over,  all  the  territory  included  within  the  following  boundaries, 
and  over  none  other,  to  wit ''(setting  forth  the  boundaries).  The 
Act  then  provided  as  follows  :  — 

"  Sec.  3.  And  be  it  further  enacted,  that,  as  a  compliance 
with  the  fundamental  condition  of  admission  contained  in  the 
last  preceding  section  of  this  Act,  the  boundaries  of  the  said 
State  of  Michigan,  as  in  that  section  described,  declared  and 
established,  shall  receive  the  assent  of  a  Convention  of  delegates 
elected  by  the  people  of  the  said  State,  for  the  sole  purpose  of 
giving  the  assent  herein  required."  : 

It  then  made  it  the  duty  of  the  President  of  the  United 
States,  as  soon  as  such  assent  should  have  been  given,  to  an 
nounce  the  same  by  proclamation,  whereupon  the  admission  of 
the  State  into  the  Union  was  to  be  complete. 

By  this  Act,  it  will  be  observed,  no  mode  was  specified  in 
which  the  Convention  to  pass  upon  the  condition  should  be 
called.  One,  however,  was  elected,  in  pursuance  of  an  Act 
passed  July  25,  1836,  by  the  State  legislature,  as  organized 
under  the  Constitution.  This  Convention  met  on  the  26th  of 
September  following,  and  rejected  the  condition  imposed  by 
Congress,  on  the  ground  that  that  body  had  no  right  to  annex 
such  a  condition  to  the  admission  of  the  State  into  the  Union, 
according  to  the  terms  of  the  Ordinance  of  1787,  and  communi 
cated  its  dissent  to  the  President  of  the  United  States. 

Public  opinion,  however,  being  much  divided  upon  the  ques 
tion,   subsequently  a  new  Convention,  composed  of   delegates 
elected  by  a  spontaneous  movement  of  those  who  favored  ad- 
i   U.  S.  Stat.  at  Large,  Vol.  V.  pp.  49,  50. 


188     ACTION   OF    CONGRESS    ON   THE   ADMISSION   OF   MICHIGAN. 

mission  on  the  terms  proposed  by  Congress,  was  called  on  the 
14th  of  December,  1836,  by  which  the  condition  was  declared 
accepted.  By  information  gathered  subsequently  to  its  adjourn 
ment,  it  was  made  to  appear  probable  that  from  5000  to  6000 
votes  for  members  of  this  latter  Convention  had  been  cast  at  the 
first  election  for  those  who  had  opposed  the  acceptance  of  the 
condition  in  the  former  Convention,  and  from  8000  to  9000  in 
favor  of  those  who  urged  the  acceptance  of  the  same.  Such 
was  the  evidence  that  Michigan  had  complied  with  the  funda 
mental  condition  imposed  by  Congress. 

§  200.  The  action  of  this  Convention  having  been  immedi 
ately  communicated  to  the  President  of  the  United  States,  that 
officer,  on  the  26th  of  the  same  month  —  December,  1836 — sent 
a  message,  with  accompanying  documents,  to  the  Senate,  em 
bodying  the  request  of  Michigan  for  admission  into  the  Union, 
and  committing  the  whole  matter  to  the  judgment  of  Congress ; 
the  President  at  the  same  time  stating,  that  had  the  information 
communicated  arrived  during  the  recess  of  Congress,  he  would 
have  issued  his  proclamation  declaring  the  State  admitted  into 
the  Union,  since,  in  his  opinion,  she  had  complied  with  the 
requisite  terms  of  admission.  This  message  being  referred  to 
the  Committee  on  the  Judiciary,  a  bill  was  reported  to  the  Sen 
ate  for  the  admission  of  the  State  into  the  Union,  of  which  the 
preamble  was  as  follows :  — 

"  Whereas,  in  pursuance  of  the  Act  of  Congress  of  June  the 
fifteenth,  eighteen  hundred  and  thirty-six,  entitled  l  An  Act  to 
establish  the  Northern  Boundary  Line  of  the  State  of  Ohio,  and 
to  provide  for  the  Admission  of  the  State  of  Michigan  into  the 
Union,'  a  Convention  of  delegates,  elected  by  the  people  of  the 
said  State  of  Michigan  for  the  sole  purpose  of  giving  their 
assent  to  the  boundaries  of  the  said  State  of  Michigan,  as  de 
scribed,  declared,  and  established  in  and  by  the  said  Act,  did,  on 
the  fifteenth  of  December,  eighteen  hundred  and  thirty-six,  as 
sent  to  the  provisions  of  said  Act,"  enacts  that  said  State  be 
admitted,  &c. 

As  a  prelude  to  the  discussion  of  this  bill,  Mr.  Morris,  Senator 
from  Ohio,  moved  to  strike  out  this  preamble,  as  asserting  what 
was  not  the  fact,  namely,  that  the  Convention,  which  undertook 
to  assent  to  the  change  of  boundaries  required  by  Congress,  was 
a  legal  Convention ;  which  motion  he  afterwards  varied  by 


CHARACTER   OF   THE   MICHIGAN    CONVENTIONS    OF    1835-6.      189 

moving  an  amendment  to  the  preamble,  recapitulating  the  pro 
ceedings  in  Michigan  under  the  Act  of  June  15,  1836,  but  ex 
pressing  or  implying  no  opinion  as  to  the  validity  of  the  Con 
vention.  The  result  of  the  discussion  was,  that  the  bill,  as 
modified  by  him,  was  finally  passed  and  approved  January  26, 
1837,  and  the  State  thereby  admitted  into  the  Union.1 

§  201.  Tested  by  the  canons  laid  down  in  previous  sections 
of  this  chapter,  it  is  easy  to  see  that  neither  of  the  three  Con 
ventions  concerned  in  the  formation  of  Michigan  into  a  State 
was  regular,  or,  strictly  speaking,  legitimate.  But  there  was, 
nevertheless,  a  difference  between  them  in  respect  of  the  de 
grees  of  their  irregularity,  the  first  and  third  being  far  more 
obnoxious  to  exception  than  the  second. 

The  first  Michigan  Convention  —  that  by  which  the  Constitu 
tion  under  which  the  State  finally  became  a  member  of  the 
Union  was  in  the  main  framed  —  was  an  illegitimate  body,  be 
cause  called  by  the  Territorial  legislature,  not  only  without  the 
authorization  of  Congress,  but  implicitly,  at  least,  against  its 
will.2  As  we  have  seen,  the  people  of  the  Territory  had  for  sev 
eral  years  been  endeavoring,  unsuccessfully,  to  procure  the  pas 
sage  by  Congress  of  an  enabling  Act,  permitting  the  erection 
of  the  Territory  into  a  State.  What  Congress,  which  alone  had 
jurisdiction  to  act  in  the  matter,  had  refused  to  permit,  obvi 
ously  could  not  be  done  but  in  derogation  and  defiance  of  its 
authority. 

§  202.  The  second  Convention,  assembled  under  the  Act  of 
Congress  of  June  15,  1836,  was  irregular,  as  having  been  called, 
not  without  an  apparent  authorization  of  Congress,  but  by  an 
unauthorized  and  unconstitutional  body  within  the  Territory,  the 
so-called  State  legislature.  The  Act  of  January  15,  1836,  as  we 
have  seen,  admitted  the  Territory  into  the  Union,  "  on  condition 
that  a  Convention,  specially  called  for  the  purpose,"  should 
assent  to  the  boundaries  thereby  prescribed.  There  being  no 
specification  of  the  body  by  which  the  Convention  should  be 
called,  the  question  as  to  the  body  intended,  or  most  proper,  to 
perform  the  duty,  was  one  of  presumptions.  There  were  in  the 
Territory  two  bodies  which  might  be  conceived  to  be  authorized 
to  perform  it :  first,  the  Legislative  Council,  the  proper  law-mak 
ing  power  of  the  Territory,  elected  under  the  authority  of  Con- 

1  U.  S.  Stat.  at  Large,  Vol.  V.  p.  144. 

2  See  post,  §  209,  note,  Opinion  of  Attorney- General  of  the  United  States. 


190      CHARACTER   OF   THE   MICHIGAN   CONVENTIONS    OF   1835-6. 

gress ;  the  body  by  which  the  Convention  had  been  called  that 
had  framed  the  State  Constitution,  referred  to  in  the  Act ;  and, 
secondly,  the  body  elected  under  the  new  Constitution,  and 
denominated  the  State  legislature  —  an  assemblage  of  men 
unknown  to  the  only  laws  in  force  in  the  Territory,  those  of  Con 
gress  ;  and  not  only  so,  but  so  far  antagonistic  to  Congress  itself, 
that  if  the  former  had  any  validity  whatever,  as  a  local  legisla 
ture  for  the  Territory,  the  latter  had  absolutely  none ;  the  juris 
dictions  of  the  two  being  exclusive  of  each  other.  Under  these 
circumstances,  it  is  clear,  that  when  Congress  prescribed  the 
calling  of  a  Convention  to  do  an  act  which  was  to  impart  its 
first  and  only  vitality  to  the  State  organization,  it  did  not  intend 
to  call  upon  a  member  of  that  embryo  organization  to  initiate 
such  Convention  ;  but  rather  upon  the  legislative  branch  of  the 
Territorial  government,  created  by  itself,  in  the  enjoyment  of  all 
its  functions,  and  in  every  way  qualified  to  perform  the  duty. 

§  203.  The  third  Convention,  got  together  by  a  spontaneous 
movement  of  the  people,  to  reverse  the  action  of  the  second, 
was,  if  possible,  the  least  regular,  the  most  distinctly  illegitimate, 
of  the  three.  It  was  a  body  resting  on  the  authority  neither  of 
Congress,  the  Legislative  Council  of  the  Territory,  nor  the  sup 
posed  State  legislature,  but  on  that  of  individuals  only,  acting 
outside  of  the  law.  Under  an  established  Territorial  government, 
such  a  body  would  be  revolutionary,  even  if  resting  on  the  vote 
of  every  inhabitant  of  the  Territory,  since  no  assemblage  of  citi 
zens  could  have  power  to  speak  in  the  name  of  such  govern 
ment,  much  less  in  that  of  Congress,  unless  specifically  author 
ized  by  law.  The  Act  of  July  15,  1836,  requiring  a  Convention 
to  be  called,  furnished  no  such  authorization.  That  it  did  not, 
was  implicitly  admitted  by  the  public  men  and  citizens  generally 
of  Michigan,  since,  in  pursuance  of  it,  they  first  proceeded  to 
call  such  Convention  through  the  State  legislature,  and  only 
had  recourse  to  the  action  of  irresponsible  caucuses,  when  the 
Convention  called  by  the  legislature  had  refused  its  assent  to 
the  condition  of  admission  imposed  by  Congress. 

§  204.  Enough  has,  perhaps,  been  said  to  show  the  true  char 
acter  of  the  third  Michigan  Convention,  but  the  question  of  its 
regularity  is  so  important,  that  I  venture  to  borrow  somewhat 
freely  from  the  speeches  of  senators  of  the  United  States,  made 
in  the  course  of  the  discussion  of  the  final  bill  for  the  admis 
sion  of  Michigan  into  the  Union. 


CHARACTER   OF   THE   MICHIGAN    CONVENTIONS   OP   1835-6.      191 

After  rehearsing  the  facts  relating  to  the  three  Conventions, 
substantially  as  detailed  above,  the  Hon.  John  C.  Calhoun  said :  — 

"  Such  are  the  facts  out  of  which  grows  the  important  ques 
tion,  —  Had  this  self-constituted  assembly "  (the  third  Conven 
tion)  "  the  authority  to  assent  for  the  State  ?  Had  they  the 
authority  to  do  what  is  implied  in  giving  assent  to  the  condition 
of  admission  ?  That  assent  introduces  the  State  into  the  Union, 
and  pledges  in  the  most  solemn  manner  to  the  constitutional 
compact,  which  binds  these  States  in  one  confederated  body ; 
imposes  on  her  all  its  obligations,  and  confers  on  her  all  its  bene 
fits.  Had  this  irregular,  self-constituted  assemblage  the  authority 
to  perform  these  high  and  solemn  acts  of  sovereignty  in  the  name 
of  the  State  of  Michigan  ?  She  could  only  come  in  as  a  State ; 
and  none  could  act  or  speak  for  her  without  her  express  author 
ity  ;  and  to  assume  the  authority  without  her  sanction,  is  nothing 
short  of  high  treason  against  the  State. 

"  Again ;  the  assent  to  the  conditions  prescribed  by  Congress 
implies  an  authority  in  those  who  gave  it  to  supersede  in  part 
the  Constitution  of  the  State  of  Michigan ;  for  her  Constitution 
fixes  the  boundaries  of  the  State  as  part  of  that  instrument 
which  the  condition  of  admission  entirely  alters,  and  to  that  ex 
tent  the  assent  would  supersede  the  Constitution ;  and  thus  the 
question  is  presented,  whether  this  self-constituted  assembly, 
styling  itself  a  Convention,  had  the  authority  to  do  an  act  which 
necessarily  implies  the  right  to  supersede  in  part  the  Constitu 
tion.  But,  further:  the  State  of  Michigan,  through  its  legis 
lature,  authorized  a  Convention  of  the  people,  in  order  to  deter 
mine  whether  the  condition  of  admission  should  be  assented  to 
or  not.  The  Convention  met ;  and,  after  mature  deliberation, 
it  dissented  to  the  condition  of  admission  ;  and  thus  again  the 
question  is  presented,  whether  this  self-called,  self-constituted 
assemblage,  this  caucus  —  for  it  is  entitled  to  no  higher  name  — 
had  the  authority  to  annul  the  dissent  of  the  State,  solemnly 
given  by  a  Convention  of  the  people,  regularly  convoked  under 
the  express  authority  of  the  constituted  authorities  of  the 
State  ?  ! 

1  Mr.  Calhoun,  in  this  speech,  commits  the  error  of  supposing  the  second  Con 
vention,  called  by  the  so-called  State  legislature,  to  be  regular.  It  has  already 
been  seen,  that  this  was  certainly  not  so,  and  it  will  be  shown  in  a  subsequent 
section,  on  high  constitutional  authority,  that  the  position  assumed  on  that  sub 
ject,  in  previous  sections,  is  the  true  one.  See  §  208,  post. 


192      CHARACTER   OF   THE   MICHIGAN    CONVENTIONS    OF   1835-6. 

"  If  all,  or  any  of  these  questions,"  he  continued,  "  be  an 
swered  in  the  negative ;  if  the  self-created  assemblage  of 
December  had  no  authority  to  speak  in  the  name  of  Michigan ; 
if  none  to  supersede  any  portion  of  her  Constitution ;  if 
none  to  annul  her  dissent  to  the  condition  of  admission  regu 
larly  given  by  a  Convention  of  the  people  of  the  State,  convoked 
by  the  authority  of  the  people  of  the  State,  to  introduce  her  on 
its  authority  would  be  not  only  revolutionary  and  dangerous, 
but  utterly  repugnant  to.  the  principles  of  our  Constitution. 
The  question  then  submitted  to  the  Senate  is,  had  that  assem 
blage  the  authority  to  perform  these  high  and  solemn  acts  ? 

"  The  chairman  of  the  Committee  on  the  Judiciary  holds  that 
this  self-constituted  assemblage  had  the  authority ;  and  what  is 
his  reason  ?  Why,  truly,  because  a  greater  number  of  votes 
were  given  for  those  who  constituted  that  assemblage  than  for 
those  who  constituted  the  Convention  of  the  people  of  the  State, 
convened  under  its  constituted  authorities.  This  argument  re 
solves  itself  into  two  questions  :  the  first,  of  fact,  and  the  second, 

of  principle.  I  shall  not  discuss  the  first I  come  to  the 

question  of  the  principle  involved  ;  and  what  is  it  ?  The  argu 
ment  is,  that  a  greater  number  voted  for  the  last  Convention 
than  for  the  first,  and,  therefore,  the  acts  of  the  last,  of  right, 
abrogated  those  of  the  first ;  in  other  words,  that  mere  numbers, 
without  regard  to  the  forms  of  law  or  the  principles  of  the  Con 
stitution,  give  authority.  The  authority  of  numbers,  according 
to  this  argument,  sets  aside  the  authority  of  law  and  the  Con 
stitution.  Need  I  show  that  such  a  principle  goes  to  the  entire 
overthrow  of  our  Constitutional  government,  and  would  subvert 
all  social  order?  It  is  the  identical  principle  which  prompted 
the  late  revolutionary  and  anarchical  movement  in  Maryland,1 
and  which  has  done  more  to  shake  confidence  in  our  system  of 
government  than  any  event  since  the  adoption  of  our  Constitu 
tion  ;  but  which,  happily,  has  been  frowned  down  by  the  patri 
otism  and  intelligence  of  the  people  of  that  State."  2 

1  The  movement  referred  to  was  one  organized  in  Maryland  to  call  a  Conven 
tion  "  by  the  inherent  and  unalienable  rights  of  the  people,  and,  without  a  legis 
lative  Act,  to  alter  and  change  the  Constitution  of  the  State."     The  ground  on 
which  it  was  justified;  was,  that  the  government  of  the  State  did  not  represent 
the  voice  of  the  numerical  majority  of  the  people,  and  that  the  authority  of  law 
and  Constitution  was  nothing  against  that  of  numbers. 

2  Benton's  Abr.  Deb.  in  Cong.,  Vol.  XIII.  pp.  73,  74. 


CHARACTER   OF   THE   MICHIGAN    CONVENTIONS   OF   1835-6.      193 

§  205.  On  the  same  side  followed  the  Hon.*  Mr.  IJwing,  of 
Ohio,  in  an  argument  so  lucid  and  satisfactory  that,  at  the  risk 
of  extending  this  discussion  too  far,  I  extract  from  it  the  follow 
ing  passage,  relating  to  the  evidence  tending  to  show  that  the 
third  Michigan  Convention  in  fact  represented  the  people  of  the 
Territory.  He  said  :  — 

"  An  assemblage  of  the  people,  in  meetings  which  are  famil 
iarly  denominated  caucuses,  was  held  in  some  of  the  counties, 
and  mutually  agreed  to  call  a  new  Convention.  Committees 
get  together,  and,  after  consultation,  publish  a  time  and  place 
at  which  it  is  to  assemble.  The  whole  matter  was  utterly  un 
authorized,  save  by  party  organization,  and  was  the  effect  of 
such  organization.  Will  any  man  dispute  it  ?  Will  any  man 
pretend  that  this  latter  Convention  was  the  effect  of  a  simulta 
neous  and  spontaneous  impulse  of  the  whole  people  of  Michi 
gan  ? l  Is  there  any  the  least  proof  of  such  being  the  fact  ? 
The  Convention  originated  in  county  calls  ;  and  all  the  counties 
but  two  joined  in  the  plan,  and  held  elections  for  delegates. 
What  evidence  is  there  of  any  regularity  in  these  elections? 
Let  us  look  at  the  papers.  We  have,  to  be  sure,  the  Act  of  the 
Convention  itself,  giving  the  assent  of  the  State  to  the  Act  of 
admission,  and  which  was  transmitted  to  the  President  of  the 
United  States.  And  we  have  the  certificate  of  General  Wil 
liams,  said  to  have  been  the  presiding  officer  of  the  Convention, 
and  the  names  of  the  delegates.  But  there  is  not  any  official 
act  or  signature  of  any  officer  known  to  the  laws  either  of  Michi 
gan  or  of  the  United  States ;  not  the  slightest  proof  of  the  elec 
tion  or  qualification.  That  paper,  containing  the  assent  of 
Michigan  in  a  matter  so  important,  is  not  at  all  authenticated. 
Where  do  you  find  the  law  according  to  which  it  was  con 
ducted  ?  There  is  none.  It  rests  on  nothing.  There  was  a 
meeting  of  certain  individuals  held  at  a  place  called,  I  believe, 
Ann  Arbor ;  and  we  have  certain  resolutions  of  theirs,  which  are 
to  avail  against  the  doings  of  a  Convention  held  in  pursuance 
of  a  law  of  the  State,  and  all  whose  acts  are  fully  and  legally 

1  Had  it  been  the  effect  of  such  an  impulse,  the  case  would  have  been  no  bet 
ter.     It  will  not  do  to  admit,  that  the  inhabitants  of  a  Territory  can,  even  by  a 
perfectly  unanimous  vote,  destroy  a  political  organization  set  over  them  by  Con 
gress,  and  substitute  for  it  one  of  their  own  creation. 
13 


194      CHARACTER   OF   THE   MICHIGAN   CONVENTIONS    OF   1835-6. 

authenticated..  I  cannot  recognize  such  a  paper.  I  should  do 
violence  to  my  own  judgment  should  I  receive  it.  Even  the 
chairman  of  the  Judiciary  Committee  could  not  do  it.  He 
called  upon  the  senators  elect  (and  whose  admission  here  is  to 
follow  the  passage  of  the  bill)  to  say  that  everything  at  this 
self-styled  Convention  was  well  and  duly  conducted ;  and  they 
do  say  so,  and  give  the  private  letters  of  certain  individuals  to 
that  effect.  And  they  give,  further — and  that  I  understand  to 
be  the  evidence  principally  relied  on  —  an  article  from  a  Detroit 
newspaper,  stating  that  such  an  election  was  had,  such  Convention 
held,  3000  more  votes  were  given  for  the  delegates  to  this  last 
Convention  than  for  those  who  constituted  the  first  Convention.1 
This,  sir,  is  the  evidence  to  support  an  organic  law  of  a  new 
State  about  to  enter  the  Union !  Yes,  of  an  organic  law,  the 
very  highest  act  a  community  of  men  can  perform.  Letters, 
referring  to  other  letters  !  and  a  scrap  of  a  newspaper! "  2 

§  206.  On  the  other  hand,  among  the  numerous  and  able 
speeches  maintaining  the  regularity  of  the  Convention,  that 
which  expounded  most  fearlessly  the  principle  upon  which  alone 
it  could  be  justified,  was  that  of  Senator  Niles,  of  Connecticut. 
He  said :  — 

"  The  question  before  the  Senate  he  regarded  a  very  simple 
one  ;  it  was  really  a  question  of  facts  ;  merely,  whether  the  con 
dition  of  the  Act  of  Congress  of  last  session,  providing  for  the 
admission  of  Michigan  into  the  Union,  had  been  complied  with. 
In  considering  this  question,  gentlemen  had  gone  into  the  first 
principles  of  government,  and  made  what  he  regarded  a  bold 
attack  upon  popular  power,  on  the  fundamental  principle  of 
popular  sovereignty,  which  lies  at  the  foundation  of  all  our 
institutions.  These  doctrines  were  rather  antiquated ;  they 
belonged  to  the  school  of  the  Restoration  in  England,  and  the 
political  writings  of  Sir  Robert  Filmer ;  they  were  the  present 
doctrines  of  the  conservatives  in  all  the  governments  in  Europe 
.  .  .  .  the  doctrines  to  which  the  l  Alien  and  Sedition  laws/ 

and  other  kindred  measures,  owed  their  origin And  what 

were  those  doctrines  ?  They  were,  that  the  people  could  not  be 

1  By  the  first  Convention,  the  speaker  means  what  1  have  designated  the 
second. 

2  Benton's  Abr.  Deb.  in  Cong.,  Vol.  XIII.  p.  78. 


CHARACTER    OF   THE   MICHIGAN   CONVENTIONS   OF    1835-6.      195 

trusted ;  that  they  were  their  own  worst  enemies ;  that  all  the 
disorders,  real  or  imaginary,  that  prevailed,  were  attributable  to 
a  wild  spirit  of  democracy  —  to  popular  frenzy.  An  honest  and 
fearless  expression  of  opinion  concerning  men  and  measures, 
was  denounced  as  a  spirit  of  insubordination,  disorganization, 
and  rank  jacobinism.  A  distinguished  leader  of  that  party, 
now  no  more  ....  I  allude  ....  to  Fisher  Ames  ....  de 
clared,  that  the  disease  which  threatened  general  and  universal 
ruin  to  our  institutions  and  our  future  prospects,  was  rooted 
deep ;  that  it  had  found  its  way  into  the  very  hearts  of  the  peo 
ple.  This  disease  was  democracy ;  it  was  the  will  and  sover 
eignty  of  the  people And  it  was  the  aim  of  those  in 

authority  to  put  down  that  wild  spirit  of  democracy  by  the  strong 
arm  of  power,  and  to  maintain  their  authority,  not  through  the 
public  will,  and  as  an  emanation  from  it,  but  in  opposition  to 
it ;  in  defiance  of  it.  It  was  for  this  purpose  that  the  Alien 

and  Sedition  laws  were  passed But  that  great  scheme 

failed  ;  and  are  its  exploded,  reprobated  doctrines  now  to  be 
revived  ?  Are  we  now  to  be  told  that  there  is  no  political  power 
remaining  in  the  people  ;  that  having  established  and  put  in 
operation  governments,  they  have  parted  with  all  political  power 
whatever ;  that  they  cannot  revise  or  new-model  this  form  of 
government  they  have  themselves  established,  unless  in  pursu 
ance  of  a  provision  in  the  Constitution,  or  in  accordance  with 
a  law  of  the  legislature  ?  This  is  maintaining  that  sovereignty- 
resides  in  the  constituted  authorities  and  not  in  the  people  at 
large;  it  is  raising  the  creature  above  his  creator;  the  agent 
above  the  principal.  It  is  exalting  the  legislature  above,  and 
making  it  independent  of,  the  constituent  body.  The  Con 
stitutions  of  most  of  the  States  contain  some  provisions  for 
altering  or  amending  them  ;  some,  through  the  agency  of  a  Con 
vention,  and  some,  otherwise.  But  such  constitutional  provis 
ion  is  not  inconsistent  with,  and  cannot  take  away,  the  right  and 
power  of  the  people,  acting  in  their  primary,  original  capacity, 
to  change  their  system  of  government.  This  is  a  right  which 
they  have  not  delegated,  and  which,  of  course,  must  abide  with 
the  people  at  large.  Conventions  of  the  people  may  be  called, 
and  often  are,  in  pursuance  of  a  law  of  the  legislature  ;  yet  this 
is  a  mere  matter  of  convenience.  But  does  the  law  confer  on 
them  their  power  ?  That  is  the  question.  If  it  does,  then  a 


196      CHARACTER   OF   THE    MICHIGAN   CONVENTIONS   OF   1835-6. 

legislature  can  grant  to  another  body  greater  power  than  it  pos 
sesses  itself;  even  the  power  to  change  or  destroy  those  very 
forms  under  which  it  exists ;  a  power  to  destroy  the  legislature 
itself.  This  is  preposterous,  and  shows  the  absurdity  of  the 
principle  contended  for.  If  a  Convention  does  not  derive  its 
power  from  the  legislature,  from  whence  can  it  derive  it  except 
from  the  people  in  their  primary,  elementary  capacity,  and  wholly 
independent  of  the  legislature  and  constituted  authorities  ?  If 
this  is  not  a  true  idea  of  a  Convention  of  the  people,  he  should 
like  to  be  informed  what  a  Convention  is.  The  senator  from 
South  Carolina  (Mr.  Preston)  asks,  who  and  what  are  the  peo 
ple  ?  .  .  .  .  The  people,  in  one  sense,  are  the  whole  population 
of  a  State ;  but,  in  a  political  sense,  the  people  were  that  por 
tion  of  the  population  which  possessed  the  political  power  in  a 
State  ;  it  did  not  mean  women  or  children,  but  the  whole  body 
of  citizens  with  whom  the  political  power  resided." l 

§  207.  The  question  of  the  validity  of  the  first  Michigan  Con 
vention  as  well  as  of  the  Constitution   and  State  government 
erected  by  it,  have  been  the  subject  of  judicial  determination. 
The  so-called  legislature  of  Michigan,  elected  under  the  Con 
stitution  in  anticipation  of  admission  into  the  Union,  met  and 
organized  on  the  3d  of  March,  1835.     On  the  26th  of  March, 
1836,  ten  months  before  Michigan  was  admitted  into  the  Union, 
this  legislature  incorporated  the  members  of  "  The  Detroit  Young 
Men's  Society,"  and  to  that  society  accrued,  as  was  claimed, 
the  title  to  certain  real  estate  in  Detroit.    Ejectment  was  brought 
and  defended  by  the  defendants  in  possession,  on  the  ground 
that  the  society  was  not  a  corporation  or  body  politic,  in  the  law, 
capable  to  take  or  hold  the  premises  in  question,  nor  to  exercise 
any  corporate  rights  under  color  of  the  Act  of  incorporation,  for 
the  reason,  that  there  was  no  legal  State  government,  and,  con 
sequently,  no  State  legislature  competent  to  pass  laws,  at  the 
time  the  Act  was  passed,  within  the  Territory  of  Michigan.    The 
argument,  in  brief,  was,  that  a  Territorial  and  State  government 
cannot  coexist  within  the  same  Territory ;  that  the  former  hav 
ing  been  established  by  Congress,  with  whom  rests  the  exercise 
of  Territorial  sovereignty,  it  must  continue  to  exist,  until  regu 
larly  superseded  by  the  power  which  created  it,  which,  in  the 
case  of  Michigan,  did  not  occur  until  the  State  was  admitted 
l  Benton's  Abr.  Deb.  in  Cong.,  Vol.  XIII.  pp.  90-92. 


CHARACTER   OF   THE   MICHIGAN   CONVENTIONS   OF   1835-6.      197 

into  the  Union,  January  26,  1837 ;  or,  at  the  earliest,  until  the 
Act  of  conditional  admission  of  June  15,  1836. 

The  Supreme  Court  of  Michigan,  however,  held  that  the 
Society  was  a  valid  corporation,  the  Territory  having  been,  it 
was  said,  transformed  into  a  State  on  the  adoption  of  the  Con 
stitution  by  the  people,  October  5th,  1835  ;  that  the  legislature, 
organized  in  November  following,  was  a  legitimate  legislature ; 
that  Article  V.  of  the  compact  contained  in  the  Ordinance  of 
1787,  "secured  absolutely  and  inviolably  to  the  people  of  the 
Territory  of  Michigan,  as  established  by  the  Act  of  Congress  of 
January  11,  1805,  the  right  to  form  a  permanent  Constitution 
and  State  government,  whenever  said  Territory  should  contain 
sixty  thousand  free  inhabitants  ;  that  that  right  could  in  no  way 
be  modified  or  abridged,  or  its  exercise  controlled  or  restrained, 
by  the  general  government ;  that  the  assent  of  Congress  to  the 
admission  of  Michigan  into  the  Union,  was  only  necessary, 
because  the  older  States,  represented  in  Congress,  possessed  the 
physical  power  to  refuse  a  compliance  with  the  terms  of  com 
pact  contained  in  the  Ordinance  of  1787,  and  there  was  no  third 
party  to  which  the  State  could  resort  to  enforce  such  compli 
ance  ;  and  that  the  right  to  such  admission,  secured  by  Article 
V.  of  the  Ordinance,  became  absolute  and  unqualified,  on  the 
adoption  of  the  Constitution  of  the  State,  and  the  organization 
of  the  State  government."  1 

Upon  this  decision  a  writ  of  error  was  taken  to  the  Supreme 
Court  of  the  United  States,  by  whom  the  case  was  dismissed 
for  want  of  jurisdiction.  In  deciding  the  case,  the  Court  held, 
that  an  objection  to  the  validity  of  a  statute,  founded  upon  the 
ground  that  the  legislature  which  passed  it  were  not  competent 
or  duly  organized  under  Acts  of  Congress  or  the  Constitution,  so 
as  to  pass  valid  statutes,  is  not  within  the  cases  enumerated  in 
the  twenty -fifth  section  of  the  Judiciary  Act,  and,  therefore,  that 
the  Court  had  no  jurisdiction  over  the  subject ;  that,  in  order  to 
give  the  Federal  Supreme  Court  jurisdiction,  the  statute,  the 
validity  of  which  is  drawn  in  question,  must  be  passed  by  a 
State,  a  member  of  the  Union,  and  a  public  body  owing  obedi 
ence  and  conformity  to  its  Constitution  and  laws  ;  that  if  public 
bodies,  not  duly  organized  or  admitted  into  the  Union,  under 
take,  as  States,  to  pass  laws  which  might  encroach  on  the 
i  Scott  v.  The  Detroit  Young  Men's  Society's  Lessee,  1  Doug.  Mich.  R.  119. 


198      CHARACTER   OF   THE   MICHIGAN   CONVENTIONS   OP   1835-6. 

Union  or  its  granted  powers,  such  conduct  would  have  to  be 
reached  either  by  the  power  of  the  Union  to  put  down  insurrec 
tions,  or  by  the  ordinary  penal  laws  of  the  States  or  Territories 
within  which  these  bodies  are  situated  and  acting,  but  that  their 
measures  are  not  examinable  by  the  Supreme  Court  of  the 
United  States  on  a  writ  of  error.1 

§  208.  A  very  able  dissenting  opinion  was,  however,  delivered 
by  Justice  M'Lean,  in  which  he  asserted  the  jurisdiction  of  the 
court.  In  the  course  of  this  opinion,  he  said  :  — 

"  No  serious  objection  need  be  made,  in  my  judgment,  to  the 
assemblage  of  the  people  in  Convention  "  (the  first  Convention) 
"  to  form  a  Constitution,  although  it  is  the  more  regular  and 
customary  mode  to  proceed  under  the  sanction  of  an  Act  of 
Congress.  But,  until  the  State  shall  be  admitted  into  the 
Union  by  an  Act  of  Congress,  the  Territorial  government  re 
mains  unimpaired.  No  act  of  the  people  of  a  Territory,  without 
the  sanction  of  Congress,  can  change  the  Territorial  into  a  State 
government.  The  Constitution  requires  the  assent  of  Congress 
for  the  admission  of  a  State  into  the  Union ;  and  *  the  United 
States  guaranty  to  every  State  in  the  Union  a  republican  form 
of  government.'  Hence  the  necessity,  in  admitting  a  State,  for 
Congress  to  examine  its  Constitution.  The  Act  <  to  incorporate 
the  Detroit  Young  Men's  Society '  was  the  exercise  of  sover 
eign  power,  a  power  totally  repugnant  to  the  sovereignty  of 
the  Union  in  its  Territorial  form.  Until  the  26th  of  January, 
1837,  Michigan  was  not  admitted  into  the  Union  and  recognized 
as  a  State.  Whatever  effect  this  admission  may  have,  by  way 
of  relation,  on  the  exercise  of  the  political  powers  of  the  State 
prior  to  that  time,  is  not  now  the  question.  The  question  of 
jurisdiction  relates  to  the  time  the  Act  was  passed  and  its  valid 
ity.  This  Act  of  incorporation  was  repugnant  to  the  Constitu 
tion  of  the  United  States,  under  which  the  Territorial  govern 
ment  was  organized.  It  was  repugnant  to  the  laws  of  Congress 
which  formed  that  organization.  It  was  an  exercise  of  sover 
eignty  incompatible  with  the  sovereignty  of  the  Union  in  all  its 

1  Scott  v.  Jones,  Lessee  of  the  Detroit  Y.  M.  Soc.,  5  How.  (U.  S.)  R.  343. 
For  a  decision,  on  the  other  hand,  denying  the  validity  of  the  State  govern 
ment  of  Michigan  before  the  admission  of  the  State  into  the  Union,  see  Myers 
v.  The  Manhattan  Bank,  20  Ohio  R.  283, — a  decision,  for  every  reason,  of 
authority  at  least  equal  to  that  of  the  Michigan  Court. 


CHARACTER  OF  THE   MICHIGAN   CONVENTIONS  OP  1835-6.      199 

legal  forms.  And  this  Act  was  declared  by  the  Supreme  Court 
of  Michigan  to  be  valid.  I  cannot  conceive  a  clearer  case  for 

jurisdiction The  two  sovereignties  of  the  State  and  the 

Territorial  government  cannot  exist  at  the  same  time  within  the 
same  limits."  1 

§  209.  As  the  majority  of  the  court  expressly  announced  in 
this  case  that  they  decided  no  point  but  that  of  jurisdiction,  it 
cannot  be  assumed  that  they  would  have  coincided  with  Justice 
M'Lean  in  the  points  discussed  by  him,  had  they  sustained  the 
jurisdiction.  But  certainly  there  is  deducible  from  the  opinion 
of  the  court  an  inference  that  the  Territory  of  Michigan  did  not 
become  a  State  for  the  purpose  of  giving  rights,  which  might  be 
the  subject  of  litigation  before  the  courts  of  the  Union,  in  other 
words,  did  not  become  a  State  for  all  purposes,  until  admitted 
into  the  Union.  The  only  observation  I  wish  to  make  upon  the 
case  is,  that  our  Constitution  knows  no  purgatorial  condition, 
intermediate  between  that  of  a  Territory  and  that  of  a  State.2 
So  long  as  a  political  organization  is  a  Territory,  it  is  not  in  any 
sense  or  for  any  purpose  a  State,  and,  vice  versa.  Once  a  Terri 
tory  always  a  Territory,  until  a  change  be  effected  by  an  Act  of 
Congress.  A  Territory  may  seize  upon  the  reins  of  power,  and 
make  of  itself,  de  facto,  a  State,  but  when  it  does  so  it  departs 
from  legal  and  regular  courses,  and  enters  upon  the  field  of 
revolution.3 

§  210.  In  the  cases  of  the  other  States  whose  Constitutions 
were  framed  partly  or  wholly  by  Conventions  called  without  en- 

1  Scott  v.  Jones,  Lessee,  &c.,  5  How.  (U.  S.)  R.  380-382. 

2  On  this  subject  see  a  speech  of  Henry  Winter  Davis,  in  Appendix  to  Vol. 
XXX VH.  Cong.  Globe,  pp.  261,  262. 

3  In  connection  with  the  subject  discussed  in  the  foregoing  sections,  see  an 
opinion  of  Attorney-General  B.  F.  Butler,  officially  given,  respecting  certain 
movements  made  in  Arkansas  in  1835,  with  a  view  to  erect  the  Territory  of  that 
name  into  a  State,  without  an  enabling  Act.    The  Governor  of  the  Territory,  ap 
prehending  that  the  Territorial  legislature,  or  the  people  of  the  Territory,  would 
call  a  Convention  to  form  a  State  Constitution  without  the  authority  of  Congress, 
wrote  a  letter  to  the  President  of  the  United  States,  asking  instructions  for  his 
guidance  in  such  a  case.     This  letter  being  referred  to  the  Attorney-General  for 
his  opinion  on  the  constitutional  and  legal  questions  presented,  that  officer  dis 
cussed  at  length  two  questions,  stated  by  him  thus  :  —  1.  As  to  the  power  of  the 
Territorial  legislature  to  pass  laws  authorizing  the  formation  of  a  Constitution 
and  State  government ;  and,  2.  As  to  the  right  and  authority  of  the  citizens  of 
the  Territory  to  take  measures  for  that  purpose,  and  the  extent  to  which  such 


200      OTHER   CONVENTIONS   ASSEMBLED   WITHOUT   ENABLING   ACTS. 

abling  Acts,  there  are  no  circumstances  that  require  extended 
notice,  except  in  that  of  Kansas.  Arkansas  framed  her  Consti 
tution  in  January,  1836 ;  Florida,  in  January,  1839 ;  Iowa,  in 
November,  1844,  but  modified  it,  under  the  requisition  of  Con 
gress,  in  relation  to  boundaries,  in  May,  1846 ;  Wisconsin,  in 
February,  1848  ;  California,  in  October,  1849 ;  Oregon,  in  Sep 
tember,  1857 ;  and  Nevada,  (her  first,  which  was  rejected)  in  the 
year  1863.  As  we  have  already  intimated,  these  States  were  all 
of  them,  excepting  Oregon,  formed  under  a  claim  of  right  aris 
ing  from  stipulations  in  treaties  or  deeds  of  cession  directly 
binding  the  United  States  to  admit  them  upon  the  happening 
of  certain  contingencies.  Generally,  the  right  thus  secured  was 
kept  prominently  in  view  in  the  discussions  attending  the  tran 
sition  from  the  condition  of  Territories  to  that  of  States,  and 
many  of  the  Conventions  carefully  recited  in  the  preamble  to  the 
Constitutions  framed  by  them  the  terms  of  the  treaty  or  deed  of 
cession  by  which  their  right  was  guaranteed.  Thus  the  preamble 
to  the  Constitution  of  Arkansas  contained  the  following  recital:  — 

"  We,  the  people  of  the  Territory  of  Arkansas,  by  our  repre 
sentatives  in  Convention  assembled,  at,"  &c.,  ....  "  having 
the  right  of  admission  into  the  Union  ....  by  virtue  of  the 
treaty  of  cession  by  France  to  the  United  States  of  the  Prov 
ince  of  Louisiana,  in  order  to  secure  to  ourselves,"  &c. 

The   Florida    Constitution   contained   a   similar   clause,   but 

proceedings,  if  it  be  lawful  to  enter  on  them  at  all,  may  properly  be  carried,  con 
sistently  with  the  Constitution  and  laws  then  in  force. 

The  answers  given  to  these  questions  are  eminently  sensible  and  instructive, 
but  are  too  long  for  insertion  here.  To  the  first  question,  after  considering  the 
organic  law  of  the  Territory,  and  comparing  it  with  the  Federal  Constitution,  he 
answers,  in  substance,  that  to  suppose  such  a  power  in  the  Territorial  legislature, 
involving,  as  it  would,  that  of  altering  or  abrogating  the  Territorial  government 
established  by  the  Act  of  Congress,  would  be  manifestly  absurd.  The  second 
question  he  answers  by  saying,  that  the  inhabitants  can  legally  take  no  step  to 
ward  the  formation  of  a  Constitution  or  State  government  that  will  be  of  any 
validity  without  the  previous  authorization  of  Congress.  Still  the  people  have 
a  right,  he  says,  to  assemble  and  petition  the  government  for  a  redress  of  griev 
ances  ;  and  if  they  throw  their  petition  into  the  form  of  a  Constitution  and  accom 
panying  memorial  praying  admission  into  the  Union,  he  perceived  no  legal  ob 
jection  to  their  doing  so,  nor  to  any  measures  taken  to  collect  the  sense  of  the 
people  in  respect  to  the  same.  —  Opinions  of  the  Attorneys-General,  Vol.  II.  p.  726. 
See  also  Webster's  Works,  Vol.  VI.  p.  485,  where  a  similar  sentiment  is  ex- 


KANSAS   CONVENTION   OF   1855.  201 

basing  the  right  to  admission  on  the  treaty  with  Spain,  before 
referred  to,  as  that  of  Tennessee  had  based  the  right  in  the  case 
of  that  Territory,  on  the  deed  of  cession  from  North  Carolina. 

Oregon,  alone  of  all  the  States  admitted  into  the  Union,  can 
point  neither  to  an  enabling  Act  of  Congress  authorizing  her  to 
form  a  Constitution  and  State  government,  nor  to  a  stipulation 
giving  her  inhabitants  the  right  to  be  admitted  into  the  Union, 
on  a  contingency  specified,  and  thus  after  a  sort  excusing  them 
for  a  clamorous  assertion  of  the  right,  when  it  seemed  to  be  un 
reasonably  withheld.  The  conduct  of  that  Territory,  therefore, 
in  anticipating  the  action  of  Congress,  was  not  only  irregular 
and  illegal,  but  inexcusable. 

Respecting  the  mode  in  which  the  Conventions  in  these  sev 
eral  cases  were  called,  it  is  sufficient  to  say  that  it  was,  by  the 
action  of  the  Territorial  legislatures,  or  of  officers  connected  with 
the  administration  of  the  Territorial  governments.  Thus,  those 
of  Arkansas,  Florida,  Iowa,  Oregon,  and  Nevada,  were  called 
by  the  legislative  Assemblies  of  those  Territories  respectively,  and 
that  of  California  by  General  Riley,  military  governor  of  that 
Territory,  acting  at  the  instance  of  General  Taylor,  President  of 
the  United  States. 

§  211.  Of  the  three  Conventions  called  to  frame  a  Constitu 
tion  for  the  State  of  Kansas,  the  first  was  assembled  by  a  spon 
taneous  movement  among  the  inhabitants  of  the  Territory,  with 
out  the  authority  of  law. 

The  first  step  was  the  calling  of  a  meeting  by  "  many  voters," 
at  Lawrence,  on  the  14th  of  August,  1855,  "  to  take  into  con 
sideration  the  propriety  of  calling  a  Territorial  Convention  prelim 
inary  to  the  formation  of  a  State  government,  and  other  subjects 
of  public  interest."  At  this  meeting  were  passed  resolutions 
requesting  "  all  bond  fide  citizens  of  Kansas  Territory  "  to  elect 
in  their  respective  election  districts,  in  mass  Convention  or  other 
wise,  three  delegates  for  each  representative  in  the  legislative 
Assembly,  according  to  the  proclamation  of  Governor  Reeder  of 
the  10th  of  March  previous,  to  assemble  in  Convention  on  the 
19th  of  September,  1855,  "  to  consider  and  determine  upon  all 
subjects  of  public  interest,  and  particularly  upon  that  having  ref 
erence  to  a  speedy  formation  of  a  State  Constitution,  with  an 
intention  of  an  immediate  application  to  be  admitted  as  a  State 
into  the  Union  of  the  United  States  of  America." 


202     CHARACTER  OF  THE  KANSAS  CONVENTION  OF  1855. 

Two  weeks  before  the  assembling  of  the  Convention  thus 
called,  a  second  meeting  was  held  at  Big  Springs,  at  which  the 
project  of  holding  a  Convention  for  the  purpose  indicated  was 
commended,  and  the  determination  expressed  to  resist  unto 
blood  the  laws  of  the  "  spurious  legislature  "  of  the  Territory, 
should  peaceable  remedies  fail.  The  reference  to  the  spurious 
legislature  was  aimed  at  the  legislative  Assembly  of  the  Territory 
organized  under  the  auspices  of  the  United  States  government, 
ostensibly  by  the  inhabitants  of  the  Territory,  but,  as  it  was 
charged,  in  fact,  by  an  invading  horde  of  pro-slavery  voters  from 
Missouri.  The  meeting  then  proceeded  openly  to  recommend 
"  throughout  the  Territory  the  organization  and  discipline  of  vol 
unteer  companies,"  for  the  purpose  of  giving  effect  to  the  pre 
ceding  resolutions. 

In  pursuance  of  the  recommendation  of  these  meetings,  a 
Convention  was  held  at  Topeka  on  the  19th  of  September,  at 
which  it  was  determined  to  hold  another  Convention  at  the 
same  place,  on  the  fourth  Tuesday  of  October,  for  the  purpose 
of  forming  a  Constitution  and  State  government ;  and,  to  this 
end,  such  proceedings  were  had  as  were  deemed  necessary  for 
giving  the  notices,  conducting  the  election  of  delegates,  making 
the  returns,  and  assembling  the  Convention.  The  Convention 
met  at  Topeka  on  the  fourth  Tuesday  of  October,  1855,  and 
formed  a  Constitution,  which,  being  submitted  to  the  people, 
was,  by  a  large  majority  of  those  who  voted,  adopted.1 

§  212.  In  passing  judgment  upon  the  Topeka  Convention,  it 
is  not  within  the  scope  of  my  design  to  inquire  whether  or  not 
the  facts  of  the  situation  justified  the  calling  of  that  body,  as 
one  step  in  a  revolution,  but  simply  whether  it  was  a  legitimate 
Constitutional  Convention.  Viewed  thus,  in  its  legal  aspects,  it 
is  impossible  to  regard  it  as  other  than  illegitimate.  It  was 
called  neither  by  Congress,  the  Territorial  legislature,  nor  any  offi 
cer  connected  with  the  public  administration  in  the  Territory, 
but  in  opposition  to  and  in  defiance  of  them  all.  Such  a  body 
will  not  for  a  moment  bear  examination  on  legal  or  constitu 
tional  grounds. 

Neither  the  Convention  itself,  nor  those  who  called  it,  so  far  as 

i  See  the  Report  of  the  Senate  Committee  on  Territories  of  March  12,  1856  ; 
also  the  Minority  Report,  from  the  minority  of  the  same  Committee,  respecting 
the  proceedings  of  this  Convention  and  the  affairs  of  Kansas  in  general. 


KANSAS   CONVENTION   OP    1857.  203 

I  am  aware,  ever  pretended  that  they  were  proceeding  in  the  line 
of  law  and  precedent ;  but,  despairing,  as  was  openly  intimated, 
in  the  resolutions  passed  by  the  mass  meetings  which  called  that 
body,  of  securing  their  rights  under  a  government  foisted  upon 
them  by  their  pro-slavery  enemies,  they  notified  the  world  that 
they  proposed  to  seek  them  at  the  point  of  the  bayonet,  and 
organized  themselves  into  military  companies,  accordingly.  Al 
though,  therefore,  the  friends  of  Kansas  in  Congress,  in  their 
eager  endeavors  to  secure  for  its  inhabitants  their  civil  and  politi 
cal  rights,  by  admitting  them  into  the  Union,  under  the  Topeka 
Constitution,  made  use  of  arguments  which  seemed  to  vindicate 
the  legality  of  the  body  which  framed  it,  still  candor  compels 
me  to  admit,  that  the  enemies  of  equal  rights  not  only  had  the 
best  of  the  argument,  but  alone  used  the  language  of  truth  and 
soberness.  The  case  was,  perhaps,  the  not  uncommon  one  of 
the  law  and  substantial  justice  appearing  upon  opposite  sides 
in  a  controversy.  However  that  may  be,  it  is  certain  that 
President  Pierce  was  right,  when,  in  his  message  of  January 
24,  1856,  relating  to  the  proceedings  of  the  Topeka  Conven 
tion,  he  said  of  them  :  "  No  principle  of  public  law,  no  practice 
or  precedent  under  the  Constitution  of  the  United  States,  no 
rule  of  reason,  right,  or  common  sense,  confers  any  such  power 
as  that  now  claimed  by  a  mere  party  in  the  Territory.  In  fact, 
what  has  been  done  is  of  a  revolutionary  character.  It  is  avow 
edly  so  in  motive  and  in  aim,  as  respects  the  local  law  of  the 
Territory.  It  will  become  treasonable  insurrection  if  it  reach  the 
length  of  organized  resistance  by  force  to  the  fundamental  or 
any  other  federal  law,  and  to  the  authority  of  the  general  gov 
ernment." 

§  213.  In  the  mean  time,  the  first  Territorial  legislature  of  Kan 
sas  had  passed  an  Act  to  take  the  sense  of  the  people  on  the 
question  of  calling  a  Convention  to  form  a  State  Constitution, 
the  vote  to  be  taken  at  the  election  in  October,  1856.  At  that 
election,  accordingly,  a  vote  was  taken  at  which  a  majority  of 
the  votes  cast  —  the  free-State  men  not  voting  —  was  in  favor 
of  calling  such  a  Convention.  In  pursuance  of  this  vote,  the 
Territorial  legislature,  on  the  19th  of  February,  1857,  passed 
another  Act  providing  for  the  election,  on  the  15th  of  June  follow 
ing,  of  delegates  to  a  Convention,  to  meet  on  the  first  Monday 
of  September,  for  the  purpose  of  framing  a  Constitution  prepara- 


204          CHARACTER   OF   THE    KANSAS   CONVENTION    OF   1857. 

tory  to  admission  into  the  Union.  The  election  of  delegates 
was  held  on  the  day  appointed,  the  Free-State  men  still  with 
holding  their  votes,  the  entire  vote  for  delegates  being  about  2200. 
The  delegates  elected  assembled  at  Lecompton  on  the  5th  of 
September,  adjourned  over  to  October,  and  then  reassembling, 
framed  the  instrument  known  as  the  Lecompton  Constitution. 

§  214.  Although  there  is  no  doubt  that  this  Convention  was 
called  by  the  Territorial  legislature,  with  the  consent  of  the  execu 
tive  of  the  United  States,  still,  Congress  not  having  authorized 
it,  it  was  unquestionably  irregular  and  illegal.  To  use  the  lan 
guage  employed  by  President  Buchanan  at  a  later  day,  to  char 
acterize  the  action  of  the  Topeka  Convention,  that  of  the 
Lecompton  Convention  was  "  a  usurpation  of  the  same  char 
acter  as  it  would  be  for  a  portion  of  the  people  of  any  State  to 
undertake  to  establish  a  separate  government  within  its  limits, 
for  the  purpose  of  redressing  any  grievance,  real  or  imaginary, 
of  which  they  might  complain,  against  the  legitimate  State 
government."  To  which  he  added,  that  "  such  a  principle,  if 
carried  into  execution,  would  destroy  all  lawful  authority,  and 
produce  universal  anarchy."  The  view  thus  entertained  by 
President  Buchanan,  of  the  Topeka  Convention,  however,  was 
not  that  taken  by  him  of  its  successor,  the  Convention  held  at 
Lecompton,  on  the  call  of  the  Territorial  legislature.  In  the 
same  paragraph  of  his  message,  from  which  the  above  passage 
is  extracted,  the  President  vindicated  the  regularity  of  the  latter 
Convention,  on  the  ground  that  it  had  virtually  been  called  in 
pursuance  of  an  enabling  Act.  The  foundation  for  this  asser 
tion  he  found  in  the  provisions  of  the  Kansas-Nebraska  Act,  as 
it  has  been  called,  which  formed  the  organic  law  of  the  territory 
of  Kansas.  Section  14  of  that  Act  declared  it  to  be  the  true 
intent  and  meaning  thereof,  "  not  to  legislate  slavery  into  any 
Territory  or  State,  nor  to  exclude  it  therefrom,  but  to  leave  the 
people  thereof  perfectly  free  to  form  and  regulate  their  domestic 
institutions  in  their  own  way,  subject  only  to  the  Constitution  of 
the  United  States." 

Respecting  this  clause  of  the  Act,  President  Buchanan  said  : 
"  That  this  law  recognized  the  right  of  the  people  of  the  Terri 
tory,  without  an  enabling  Act,  to  form  a  State  Constitution, 
is  too  clear  for  argument.  For  Congress  '  to  leave  the  people 
of  the  Territory  perfectly  free,*  in  framing  their  Constitution,  *  to 


CHARACTER  OF  THE  KANSAS  CONVENTION  OF  1857.    205 

form  and  regulate  their  domestic  institutions  in  their  own  way, 
subject  only  to  the  Constitution  of  the  United  States,'  and  then 
to  say,  that  they  shall  not  be  permitted  to  proceed  and  frame 
the  Constitution  in  their  own  way,  without  express  authority 
from  Congress,  appears  to  be  almost  a  contradiction  in  terms." 
§  215.  For  a  refutation  of  this  position  of  President  Buchanan, 

—  if  that  can  need  refutation  which  upon  its  face  is  absurd, — 
I  shall  avail  myself  of  a  speech  of  the    Hon.  Henry    Winter 
Davis,  of  Maryland,  made  when  the  Lecompton   Constitution 
was   under   discussion   in    Congress.      Having   considered   the 
question   whether   Congress   may   not,  in   certain    cases,   with 
propriety,  ignore  irregularities   and  admit  Territories   into  the 
Union  whose  Constitutions  have  been  framed  without  the  pre 
vious  authorization  of  Congress,  he  proceeds  as  follows :  — 

"  But  the  argument  is  irrelevant ;  for  the  question  is  not 
whether  Congress  may,  in  its  discretion,  recognize  Constitutions 
formed  by  the  people  without  authority  of  law  ;  but  whether  a 
Territorial  legislature  has,  in  point  of  law,  authority  to  legalize 
the  election  of  a  Convention,  to  give  the  Convention  itself  a  legal 
existence,  to  vest  it  with  legal  power  to  bind  not  merely  the 
people,  but  the  Congress  ?  No  one  denies  the  power  of  Con 
gress  to  admit  Tennessee  and  Florida,  yet  nobody  ever  asserted 
any  legal  validity  in  their  proceedings  before  admission. 

"  The  language  of  the  organic  Acts,  and  the  proceedings  of 
Congress  thereupon,  are  decisive.  The  Territories  divide  them 
selves  into  two  great  classes.  In  Ohio,  Illinois,  Indiana,  Mis 
souri,  Mississippi,  Alabama,  Arkansas,  Tennessee,  and  Michigan, 
the  legislature  had  '  power  to  make  laws,  in  all  cases,  for  the 
good  government  of  the  people  of  the  said  Territory,  not  repug 
nant  to,  or  inconsistent  with,  the  Constitution  and  laws  of  the 
United  States.'  In  Wisconsin,  Minnesota,  Oregon,  Florida, 
and  Iowa,  the  power  of  the  legislatures  was  declared  to  extend 

—  in  the  identical:  words  of  the   Kansas-Nebraska  Act  —  '  to 
all  rightful  subjects  of  legislation,  not  inconsistent  with  the  Con 
stitution  and  laws  of  the  United  States.' 

"  Congress  has  construed  both  forms  of  expression  by  passing 
enabling  Acts  for  both  classes.  Not  only  for  Ohio,  Louisiana, 
Missouri,  Mississippi,  Alabama,  Illinois,  and  Indiana,  but  also 
for  Wisconsin,  Minnesota,  and  Oregon,1  did  Congress  pass  Acts 

l  This  is  a  mistake.  We  have  already  seen,  (§  196,  ante,}  that  Oregon  called 
the  Convention  which  framed  her  first  Constitution,  without  an  enabling  Act. 


\ 
206          CONDITIONAL   ACT   FOR   THE   ADMISSION    OF   KANSAS. 

specially  authorizing1  them  to  call  a  Convention  and  form  a  State 
government ;  and,  in  every  instance,  excepting  Wisconsin,  those 
bills  provided  all  the  details  of  the  Convention,  the  number  of 
delegates,  its  time  of  assembling,  the  modes  under  which  the 
delegates  should  be  elected.  It  is  plain,  Congress  thought  the 
power  of  Congress  '  to  make  laws  in  all  cases,'  necessarily  ex 
tended  '  to  all  rightful  subjects  of  legislation?  It  is  plain,  Con 
gress  thought  neither  form  of  expression  authorized  the  tempo 
rary  Territorial  government  to  create  a  Convention  to  form  a 
Constitution,  which  would  begin  to  operate  only  after  the  Terri 
torial  legislature  itself  had  ceased.  Its  power  to  govern  was 
confined  to  the  Territory,  a  temporary  contrivance  for  tempo 
rary  purposes ;  involved  in  all  the  local  interests  and  conflicts 
of  Territorial  politics,  and  not  safely  to  be  intrusted  with  the 
providing  for  a  Constitution.  In  a  word,  they  were  authorized 
to  make  laws  to  govern  the  Territory ;  but  a  law  for  a  Constitu 
tional  Convention  was  no  law  for  governing  a  Territory  at  all. 

"  The  case  is  stronger  under  the  Kansas  Act,  for  it  reserves  to 
Congress  the  power  to  make  two  or  more  States  or  Territories 
out  of  that  Territory  ;  and,  if  Congress  have  the  right  to  make 
two  States,  it  is  absurd  to  suppose  it  gave  the  Territorial  legisla 
ture  power  to  make  one  State  of  it." 1 

§  216.  The  application  of  the  Territorial  legislature,  through 
its  Convention  for 'admission  into  the  Union  under  the  Lecomp- 
ton  Constitution,  although  seconded  by  President  Buchanan, 
and  in  general  by  the  administration  party  in  Congress,  was 
substantially  unsuccessful.  After  a  long  contest,  the  friends  of 
the  measure  were  forced  to  consent  to  a  conditional  admission, 
the  bill,  known  as  the  English  bill,  which  was  finally  passed, 
providing  for  admission  of  the  State  into  the  Union,  on  condi 
tion  that  the  people  of  Kansas  should  first  vote  to  accept  certain 
propositions,  beneficial  to  their  interests,  and  the  Lecompton 
Constitution  ;  but  further  providing,  that  should  the  propositions, 
and,  with  these,  the  Lecompton  Constitution,  be  rejected,  the 
people  of  the  Territory  should  be  at  liberty  to  form  for  themselves 
a  Constitution  and  State  government  by  the  name  of  Kansas, 
and  might  elect  delegates  for  that  purpose  whenever,  and  not 
before,  it  should  be  ascertained  by  a  census  duly  and  legally 
taken,  that  the  population  of  said  Territory  equalled  or  exceeded 
l  See  Appendix  to  Vol.  XXXVII.  Cong.  Globe,  p.  262. 


THIRD   VARIETY   OP  CONVENTIONS   HELD   SINCE   1789.         207 

the  ratio  of  representation  for  a  member  of  the  House  of  Repre 
sentatives  of  the  Congress  of  the  United  States.  The  Act  then 
prescribed  the  mode  in  which  the  delegates,  who  might  thus  be 
elected,  should  proceed  to  form  a  Constitution,  and  provided  for 
submission  of  the  same  to  the  people  of  Kansas,  and  for  the 
admission  of  the  State  thus  formed  into  the  Union  under  it. 

In  pursuance  of  this  Act,  the  people  of  Kansas  went  into  an 
election  on  the  3d  of  August,  1858,  the  result  of  which  was, 
that  the  propositions  of  Congress,  and,  consequently,  the  Con 
stitution  submitted,  were  rejected  by  over  ten  thousand  ma 
jority. 

By  this  vote,  the  condition  in  which  the  Territory  of  Kansas 
was  left  was  this :  An  enabling  Act,  passed  by  Congress,  author 
ized  her  people  to  form  a  Constitution  and  State  government 
"  whenever,  and  not  before,"  it  should  be  "  ascertained  by  a  cen 
sus  duly  and  legally  taken,"  that  her  population  equaled  or  ex 
ceeded  the  ratio  of  representation  fixed  by  Congress  for  electing 
members  of  the  national  House  of  Representatives  —  that  is. 
when  its  population  should  number  93,340. 

Such,  however,  was  the  rapidity  with  which  the  Territory  was 
peopled,  that  on  the  first  Tuesday  of  June,  1859,  a  Convention 
met  at  Wyandotte,  in  pursuance  of  a  vote  of  the  people  of  the 
Territory,  by  which  a  Constitution  was  framed,  —  the  population 
at  the  time  of  the  call  of  the  Convention  exceeding  the  number 
limited  by  the  Act  above  named.  Under  this  Constitution  the 
Territory  was  afterwards  admitted  into  the  Union,  January  29, 
1861. 

§  217.  3.  The  third  variety  of  Conventions,  called  since  March 
4,  1789,  consists  of  such  as  have  been  .assembled  for  the  revision 
of  existing  Constitutions  of  States,  members  of  the  Union. 

These  may  be  subdivided  into  several  classes,  as  follows  :  — 

(a).  Such  as  have  been  convened,  for  legitimate  constitutional 
purposes,  regularly,  that  is  — 

I.  By  the  legislatures  of  the  respective  States,  acting  either  — 

1.  In  pursuance  of  special  provisions  of  such  existing  Consti 
tutions,  or  — 

2.  If  no  such  provisions  exist,  under  their  general  legislative 
authority. 

II.  By  special  bodies  created  by  the  Constitution,  called 
Councils  of  Censors. 


208     CONVENTIONS   IN  PURSUANCE   OP   CONSTITUTIONAL   PROVISIONS. 

(b).  Such  as  have  been  called,  for  legitimate  constitutional 
purposes,  irregularly,  —  that  is,  either  — 

1.  In  disregard  of  constitutional  provisions  prescribing   par 
ticular  modes  in  which  amendments  to  the  Constitution  should 
be  effected,  or  — 

2.  In  defiance  of  the  existing  governments  of  the  States  con 
cerned,  though  in  pretended  conformity  to  constitutional  prin 
ciples. 

(c).  The  so-called  Secession  and  Reconstruction  Conventions 
held  before  and  since  the  late  civil  war. 

These  several  classes  will  now  be  considered  in  the  order 
indicated. 

§  218.  (a).  I.  1.  Of  the  first  subdivision  of  the  first  class, 
comprising  such  Conventions  as  have  been  regularly  called  by 
legislative  authority,  exercised  in  pursuance  of  express  constitu 
tional  provisions,  there  have  been  held  seventeen  Conventions.1 

1  The  following  Conventions  belong  to  this  list:  —  Those  of  Georgia,  1795 
and  1798;  Kentucky,  1799  and  1849;  Delaware,  1831  and  1852;  Mississippi, 
1832;  Tennessee,  1834;  Louisiana,  1844  and  1852;  Illinois,  1847  and  1862; 
Ohio,  Michigan,  and  New  Hampshire,  1850  ;  Iowa,  1857  ;  and  Maryland,  1864. 

In  reference  to  one  of  the  Conventions  placed  in  this  list,  that  of  Delaware, 
1852,  there  has  been  much  controversy  in  that  State.  The  facts  relating  to 
the  call  of  that  body  are  as  follows  :  —  The  Delaware  Constitution  of  1831 
contained  this  clause,  — "  No  Convention  shall  be  called  but  by  authority  of 
the  people ;  and  an  unexceptionable  way  of  making  their  sense  known  will  be 
for  them  to  vote  by  ballot  on  the  third  Tuesday  of  May  in  any  year,  for  or 
against  a  Convention  ;  and  if  a  majority  of  all  the  citizens  of  the  State  having  a 
right  to  vote  for  representatives  vote  for  a  Convention,  the  next  General  Assem 
bly  shall  call  one ;  the  majority  of  all  the  citizens  of  the  State  having  a  right  to 
vote  for  representatives  to  be  ascertained  by  comparing  the  number  of  votes  for 
a  Convention  with  the  highest  number  of  votes  cast  at  either  of  the  three  preced 
ing  general  elections." 

Feb.  26,  1851,  an  Act  was  passed  by  the  General  Assembly,  taking  the  sense 
of  the  people  as  to  the  call  of  a  Convention  ;  and  Feb.  4,  1852,  was  passed 
another  Act,  which,  reciting  that  at  the  before  appointed  election  there  was  a 
majority  of  votes  for  a  Convention,  called  one  accordingly,  to  meet  at  Dover  on 
the  first  Tuesday  of  December  following.  Now,  according  to  the  rule  laid  down 
in  the  Constitution,  there  was  not  a  majority  of  votes  for  this  Convention,  though 
there  was  a  majority  of  all  the  votes  cast.  When  the  Convention  met,  there 
fore,  the  legitimacy  of  the  call  was  denied  by  some,  on  the  ground  that  the  un 
exceptionable  way  pointed  out  in  the  Constitution  was  the  only  legal  way  that 
could  be  pursued.  By  those  sustaining  the  legitimacy  of  the  body,  on  the  other 
hand,  it  was  contended,  that  the  clause  of  the  Constitution  was  not  peremptory, 


CONVENTIONS   CALLED   WITHOUT  .CONSTITUTIONAL   PROVISIONS.    209 

As,  in  calling  these  Conventions,  the  requirements  of  the 
respective  State  Constitutions  are  believed  to  have  been  strictly 
complied  with,  it  is  necessary  only  to  point  out  the  circumstance 
that  they  were  all  called  by  the  direct  action  of  the  State 
legislatures. 

§  219.  2.  The  second  subdivision,  consisting  of  Conventions 
called  for  legitimate  constitutional  purposes  by  the  respective 
State  legislatures,  under  their  general  legislative  power,  with 
out  the  special  authorization  of  their  Constitutions,  comprises 
twenty-five  Conventions.1 

The  question  of  the  legitimacy  of  Conventions  thus  called, 
I  shall  have  occasion  to  consider  in  other  parts  of  this  work, 
when  treating  of  the  relations  of  legislatures  to  Conventions, 
and  of  the  powers  of  the  former  resulting  from  those  relations.2 
I  shall,  therefore,  here  only  observe,  —  !.  That,  whenever  a  Con 
stitution  needs  a  general  revision,  a  Convention  is  indispensably 
necessary  ;  and  if  there  is  contained  in  the  Constitution  no  pro 
vision  for  such  a  body,  the  calling  of  one  is,  in  my  judgment, 
directly  within  the  scope  of  the  ordinary  legislative  power  ;  and, 
2.  That,  were  it  not  a  proper  exercise  of  legislative  power,  the 
usurpation  has  been  so  often  committed  with  the  general  acqui 
escence,  that  it  is  now  too  late  to  question  it  as  such.  It  must 
be  laid  down  as  among  the  established  prerogatives  of  our  Gen 
eral  Assemblies,  that,  the  Constitution  being  silent,  whenever 
they  deem  it  expedient,  they  may  call  Conventions  to  revise 
the  fundamental  law. 

but  recommendatory ;  and  of  that  opinion  was  the  Convention  —  with  which  I 
am  inclined  to  concur. 

I  am  indebted  for  the  facts  detailed  in  this  note  to  Hon.  Willard  Hall,  of 
Wilmington,  Delaware,  who  was  a  member  of  the  Convention. 

1  The  Conventions  embraced  in  this  list  are  the  following :  —  Those  of  Georgia, 
Jan.  4, 1 789,  May  4, 1 789,  and  1838 ;  South  Carolina,  1 790 ;  New  Hampshire,  1791 ; 
New  York,  1801,  1821,  and  1846;  Connecticut,  1818;  Massachusetts,  1820  and 
1853  ;  Rhode  Island,  1824,  1834, 1841,  and  1842,  held  under  the  Charter  govern 
ment  ;  Virginia,  1829, 1850,  and  1864 ;  North  Carolina,  1835  ;  Pennsylvania,  1837 ; 
New  Jersey,  1844;  Missouri,  1845,  1861,  and  1865;  and  Indiana,  1850. 

In  regard  to  the  last  Convention,  it  should  be  observed  that,  although  there 
was  contained  in  the  Indiana  Constitution  of  1816  power  to  the  legislature  to 
call  a  Convention  every  twelfth  year  thereafter,  that  is,  in  1828,  1840,  1852, 
&c.,  the  power  was  not  pursued,  but  a  Convention  was  called  independently  of 
it  by  an  Act  approved  Jan.  18,  1850. 

2  See  post,  ch.  vi.,  §§  376-418,  and  ch.  viii.,  §§  571-576. 

14 


210  CONVENTIONS   CALLED   BY   COUNCILS   OF   CENSORS. 

In  three  or  four  of  the  Conventions  of  this  class,  the  objection 
has  been  raised,  that  they  were  illegitimate  bodies,  because 
called  by  the  legislatures  without  special  authority  in  the  re 
spective  Constitutions.  This  was  the  case  in  the  Virginia 
Convention  of  1829,  the  Pennsylvania  Convention  of  1837,  the 
New  York  Convention  of  1846,  and  the  Massachusetts  Con 
vention  of  1853.  But  the  objection  has  commonly  been  urged 
by  a  minority,  whose  party  or  other  interests  inclined  them  to 
look  with  disfavor  upon  any  change  of  the  existing  Constitution. 
In  a  large  proportion  of  these  cases  the  objection  seemed  the 
more  plausible,  for  the  reason  that  there  existed  constitutional 
provisions  for  effecting  specific  amendments  to  the  organic  law 
in  a  more  summary  manner,  by  a  vote  of  the  people  upon  prop 
ositions  made  by  the  General  Assembly.  There  having  been 
provided,  it  has  been  said,  a  mode  in  which  constitutional 
changes  might  be  effected,  it  was  a  violation  of  legal  analogy 
to  infer  a  power  to  do  substantially  the  same  thing  in  another 
way,  not  authorized  specifically  by  the  Constitution,  —  the  well 
established  rule  being,  that  expressio  unius  est  exclusio  alterius. 
We  shall,  however,  find  occasion  in  a  subsequent  chapter  to 
consider  this  subject  more  at  large,  and  to  doubt  whether  the 
maxim  referred  to,  which  undoubtedly  furnishes  a  convenient 
rule  of  construction  in  relation  to  deeds  and  contracts  between 
man  and  man,  is  applicable  to  the  case  of  constitutional  pro 
visions.1  For  our  present  purpose,  it  may  be  regarded  as 
settled,  that  the  legislature  of  a  State  has  authority  to  provide 
for  calling  a  Convention,  whenever  there  is  no  constitutional 
provision  at  all  relating  to  amendments  of  the  fundamental  law, 
or  the  provisions  are  confined  to  the  enactment  of  specific 
amendments,  and  a  general  revision  is  deemed  necessary. 

§  220.  II.  Of  Conventions  called  regularly  and  for  legitimate 
constitutional  purposes,  by  special  bodies  created  by  the  Con 
stitution,  called  Councils  of  Censors,  the  only  cases  have  oc 
curred  in  Vermont. 

The  first  Vermont  Constitution,  that  of  1777,  provided,  Sec. 

i  See  post,  ch.  viii.,  §§  571-576. 

For  discussions  of  the  supposed  irregularity  of  the  Conventions  mentioned, 
see  Deb.  Va.  Conv.  1829,  pp.  884,  885;  Deb.  Mass.  Conv.  1853,  Vol.  I.  pp.  35, 
83;  Vol.  III.  pp.  123,  124,  Speech  of  the  Hon.  Joel  Parker;  Deb.  Pa.  Conv. 
1837,  Vol.  I.  pp.  183-187. 


CONVENTIONS   IN   DISREGARD   OF   CONSTITUTIONAL   PROVISIONS.    211 

XLIV.,  that  in  1785,  and  every  seven  years  thereafter,  there 
should  be  elected  thirteen  persons,  to  be  called  a  Council  of 
Censors,  whose  duty  it  should  be  to  inquire  generally  into  the 
public  administration,  and  with  power  "  to  call  a  Convention,  to 
meet  within  two  years  after  their  sitting,  if  there  appears  to 
them  an  absolute  necessity  of  amending  any  article  of  this  Con 
stitution  which  may  be  defective,  explaining  such  as  may  be 
thought  not  clearly  expressed,  and  of  adding  such  as  are  neces 
sary  for  the  preservation  of  the  rights  and  happiness  of  the 
people." 

Under  this  provision,  Councils  of  Censors  have  been  chosen 
every  seven  years,  from  1785  to  1862,  by  which  numerous  Con 
ventions  have  been  called,1  the  regularity  of  which  cannot  be 
impeached.  A  similar  provision  was  contained  in  the  Pennsyl 
vania  Constitution  of  1776,  Sec.  XL VII.,  but  the  Council  held 
only  two  sessions,  and  failing  to  agree,  no  Convention  was 
called.  Afterwards,  the  legislature,  in  disregard  of  the  Consti 
tution,  took  upon  itself  to  summon  a  Convention,  which  met  in 
1789  and  abolished  the  cumbrous  provision. 

§  221.  (b).  I.  Of  the  next  class  of  Conventions,  comprising 
such  as  have  been  called  for  legitimate  constitutional  purposes, 
but  irregularly,  in  disregard  of  constitutional  provisions  pre 
scribing  particular  modes  in  which  alone  amendments  to  the 
Constitution  should  be  made,  there  have  been  but  three :  that 
of  Pennsylvania  of  1789;  that  of  Delaware  of  1792;  and  that 
of  Maryland  of  1850.  A  brief  history  of  these  will  be  given  in 
the  order  in  which  they  occurred. 

As  stated  in  the  last  section,  the  Pennsylvania  Constitution 
of  1776,  Sec.  XL VII.,  provided  a  special  apparatus  for  revising 

1  See  Appendix  A,  for  a  list  of  these  Councils  and  Conventions.  All  the 
Councils,  except  those  of  1799,  1806,  1813,  and  1862,  summoned  Conventions, 
technically  so  called.  Although  the  latter  are  perhaps  properly  the  only  Con 
ventions,  yet,  considering  that  the  function  of  the  Councils  is  precisely  that  of 
a  Convention,  when  confining  itself  to  its  normal  duty  of  recommending  Consti 
tutional  changes,  I  have  reckoned  those  bodies  in  the  list  of  Conventions. 
Viewing  them  thus,  the  so-called  Convention  in  Vermont  is  but  the  people  of 
the  State,  by  a  small  body  of  representatives,  at  the  second  remove,  instead  of 
by  the  electors,  at  the  first,  ratifying  the  proposals  of  a  Council  performing  the 
function  of  a  Convention.  As  the  Vermont  Constitution  styles  this  ratifying 
body  a  Convention,  it  has  been  included  in  the  list,  on  the  same  ground  as 
were  those  which  in  the  several  States  of  the  Confederation  ratified  the  Federal 
Constitution. 


212          PENNSYLVANIA  CONVENTION  OF  1789. 

or  amending  that  instrument,  through  the  instrumentality,  first, 
of  a  Council  of  Censors,  and,  secondly,  if  deemed  necessary  by 
the  latter,  of  a  Convention  to  be  called  by  that  body.  The 
terms  of  this  constitutional  provision  were  identical  with  those 
of  Section  XLIV.  of  the  Vermont  Constitution  above  quoted, 
and  indeed  were  the  model  after  which  the  latter  was  drawn. 
But  beside  this  section,  there  was  inserted  in  the  preamble  to 
the  Pennsylvania  Constitution  the  following  important  restric 
tive  clause,  namely  :  — 

.  .  .  .  "  We,  the  representatives  of  the  freemen  of  Pennsyl 
vania  ....  do,  by  virtue  of  the  authority  vested  in  us  by  our 
constituents,  ordain,  declare,  and  establish  the  following  declara 
tion  of  rights  and  frame  of  government  to  be  the  Constitution 
of  this  Commonwealth,  and  to  remain  in  force  therein  forever 
unaltered,  except  in  such  articles  as  shall  hereafter,  on  expe 
rience,  be  found  to  require  improvement,  and  which  shall,  by  the 
same  authority  of  the  people,  fairly  delegated,  as  this  frame  of 
government  directs,  be  amended  or  improved,"  &c. 

§  222.  The  Council  of  Censors  having  twice  met  —  in  1783 
and  1784  —  and  having  failed  by  a  constitutional  majority  to 
agree  upon  calling  a  Convention,  to  consider  amendments 
deemed  necessary  by  a  majority  of  that  body,  adjourned  Sep 
tember  25,  1784,  to  meet  again  on  the  day  preceding  the  next 
general  election  ;  but  in  fact  never  again  convened. 

At  the  session  of  the  General  Assembly  in  March,  1789  — the 
year  preceding  the  time  fixed  by  the  Constitution  for  the  meet 
ing  of  the  next  Council  of  Censors  —  resolutions  were  passed 
calling  the  attention  of  the  people  to  the  subject  of  amending 
their  Constitution,  and  suggesting  that,  should  they  concur  with 
the  House  in  the  opinion  that  a  Convention  should  be  called  for 
that  purpose,  it  would  be  "  convenient  and  proper  for  them  to 
elect  members  of  a  Convention  of  the  same  numbers  and  in  the 
like  proportions  for  the  city  of  Philadelphia  and  the  several 
counties  with  those  of  their  representatives  in  Assembly,  on  the 
day  of  the  next  general  election,  at  the  places  and  in  the  man 
ner  prescribed  in  cases  of  elections  of  members  of  Assembly  by 
the  laws  of  the  State."  The  resolutions  further  provided,  that 
on  the  pleasure  of  the  people  in  the  premises  being  signified  to 
them  at  their  next  sitting,  they  would  provide  by  law  for  the  ex 
penses  of  the  Convention,  and,  if  requested,  would  appoint  the 
time  and  place  for  the  meeting  thereof. 


DELAWARE   CONVENTION   OF    1792.  213 

At  the  next  session  of  the  Assembly,  in  September  following, 
it  appearing  to  the  satisfaction  of  that  body,  by  petitions  and 
the  reports  of  members,  communicating  the  results  of  their  in 
quiries  during  the  vacation  of  the  Assembly,  that  a  Convention 
was  expedient  and  proper  in  the  general  opinion  of  the  people 
of  the  State,  resolutions  were  passed  calling  a  Convention,  to 
meet  at  Philadelphia  on  the  fourth  Tuesday  in  November,  1789. 
Delegates  were  accordingly  elected,  and,  assembling  on  the  day 
appointed,  framed  and  established  the  Constitution  of  1790. 

§  223.  Article  XXX.  of  the  Delaware  Constitution  of  1776 
provided  as  follows  :  — 

"  No  article  of  the  Declaration  of  Rights  and  Fundamental 
Rules  of  this  State  agreed  to  by  this  Convention,  nor  the  first, 
second,  fifth  (except  that  part  thereof  that  relates  to  the  right  of 
suffrage),  twenty-sixth,  and  twenty-ninth  articles  of  this  Consti 
tution,  ought  ever  to  be  violated  on  any  pretence  whatever ;  no 
other  part  of  this  Constitution  shall  be  altered,  changed,  or  dimin 
ished,  without  the  consent  of  five  parts  in  seven  of  the  Assembly, 
and  seven  members  of  the  Legislative  Council" 

As  the  Assembly  contained  seven  members  only,  and  the 
Legislative  Council  nine  members,  it  is  evident  that  no  change 
whatever  could  be  made  in  the  Constitution,  legally  and  consti 
tutionally,  save  by  the  direct  action  of  both  the  Assembly  and 
the  Legislative  Council,  and  then  only  by  a  majority  of  five- 
sevenths  of  the  one  and  seven-ninths  of  the  other.  The  phra 
seology  being  negative,  no  room  was  left  for  the  employment  of 
any  alternative  method.  A  Convention  could  not  be  called  for 
the  purpose  of  changing  or  abolishing  the  Constitution  without 
a  palpable  infringement  of  its  provisions. 

Nevertheless,  in  1791,  amendments  to  the  Constitution  being 
very  generally  deemed  necessary,  the  legislature  passed  an  Act 
calling  a  Convention,  with  a  view  to  effect  them.  In  the  pre 
amble  to  this  Act,  the  grounds  upon  which  that  body  based  its 
action  are  exhibited  in  the  following  terms  :  — 

"  By  the  thirtieth  article  of  the  Constitution  of  this  State, 
the  power  of  revising  the  same,  and  of  altering  and  amending 
certain  parts  thereof,  is  vested  in  the  General  Assembly  ;  and  it 
appears  to  this  House,  that  the  exercise  of  the  power  of  altering 
and  amending  the  Constitution  by  the  legislature  would  not  be 
productive  of  all  the  valuable  purposes  intended  by  a  revision, 


214  MARYLAND   CONVENTION    OF   1850. 

nor  be  so  satisfactory  and  agreeable  to  our  constituents  ;  and 
that  it  would  be  more  proper  and  expedient  to  recommend  to 
the  good  people  of  the  State  to  choose  deputies  for  this  special 
purpose  to  meet  in  Convention."  Then  follows  the  enacting 
clause  authorizing  the  election  of  delegates  to  a  Convention 
to  change  the  Constitution.  A  Convention  was  accordingly 
elected,  with  the  general  approbation  of  the  people  of  Dela 
ware,  by  which  a  new  Constitution  was  framed  and  put  in 
operation  in  the  following  year. 

§  224.  The  action  of  the  people  of  Maryland,  in  calling  the 
Convention  of  1850,  was  similar  to  that  just  described.  Section 
LIX.  of  the  Maryland  Constitution  of  1776,  contained  this  pro 
vision  :  — 

"  That  this  form  of  government,  and  no  part  thereof,  shall  be 
altered,  changed,  or  abolished,  unless  a  bill  so  to  alter,  change, 
or  abolish  the  same  shall  pass  the  General  Assembly,  and  be 
published  at  least  three  months  before  a  new  election,  and  shall 
be  confirmed  by  the  General  Assembly  after  a  new  election  of 
delegates,  in  the  first  session  after  such  new  election." 

The  whole  power  of  the  State  having,  under  the  Constitu 
tion  of  1776,  come  to  be  exercised  by  a  minority  of  the  citizens, 
efforts  were  repeatedly  made,  but  without  success,  to  induce  the 
General  Assembly  to  effect  the  needed  changes  in  that  instru 
ment.  In  1837,  the  impatience  of  the  reform-party  nearly  led 
to  hostile  collisions  with  the  existing  government, — the  former 
taking  steps  to  call  a  Convention  for  the  purpose  of  framing  a 
new  Constitution,  without  the  authority  and  against  the  will  of 
the  General  Assembly ;  and  the  latter,  through  the  State  ex 
ecutive,  denouncing  such  an  act  as  rebellious,  and  threatening 
with  punishment  all  who  should  engage  in  it.1  At  length,  at 
the  session  of  the  General  Assembly  held  early  in  1850,  an  Act 
was  passed  submitting  to  the  people  of  Maryland  the  ques 
tion,  whether  or  not  a  Convention  should  be  called  to  revise  the 
Constitution.  The  vote  was  taken  at  an  election  held  in  May 
of  that  year,  and  resulted  in  a  majority  in  favor  of  a  Conven 
tion.  The  whole  number  of  votes  cast,  however,  was  only  about 
twenty  thousand  —  the  total  number  of  voters  in  the  State  be 
ing  over  sixty  thousand.  A  Convention  was  thereupon  assem 
bled,  on  the  first  Monday  in  November,  1850,  which,  in  a  ses- 
l  M'Sherry's  Hist.  Md.,  pp.  348-353. 


CHARACTER  OP  THE  LAST  THREE  CONVENTIONS.      215 

sion  lasting  until  the  13th  of  May,  1851,  adopted  the  Constitu 
tion  known  as  that  of  1851.  This  Constitution  was,  in  pursu 
ance  of  one  of  its  own  provisions,  submitted  to  a  vote  of  the 
people  on  the  4th  of  June  following,  and  being  ratified  by  a 
majority  of  those  voting,  went  into  operation  on  the  4th  of 
July,  1851. 

§  225.  Respecting  the  three  Conventions  of  this  class,  I  need 
only  observe,  that  in  respect  of  their  origin,  they  were  wholly 
illegitimate.  The  first  —  that  of  Pennsylvania  —  was  not  called 
in  the  mode  provided  by  the  Constitution,  to  which,  whether 
wisely  or  unwisely,  the  people  of  the  State  had,  by  a  solemn 
provision  of  that  same  instrument,  specially  restricted  their 
agents  and  themselves.  So  also  with  that  of  Delaware.  By  its 
Constitution  of  1776,  no  organic  change  could  be  made  except 
upon  the  concurrence  of  two  conditions :  first,  a  favoring  vote 
of  five  parts  in  seven  of  the  Assembly  ;  and,  second,  a  like  vote 
of  seven  of  the  nine  members  of  the  Legislative  Council.  Nor 
could  any  such  change  be  constitutionally  made  in  Maryland  ex 
cept  on  the  concurrence  of  three  conditions  :  first,  the  passage,  by 
the  General  Assembly,  of  an  Act  for  that  purpose ;  second,  the 
publication  of  the  proposed  amendment  for  the  information  of  the 
people,  for  at  least  three  months  prior  to  a  new  election  of  that 
Assembly ;  and,  third,  the  confirmation  of  the  Act  by  such  new 
Assembly.  Not  one  of  the  conditions  mentioned  was  fulfilled 
in  the  case  of  either  of  those  States.  The  legislatures,  instead 
of  proceeding  to  do  what  was  desired,  by  their  own  direct  action, 
as  their  respective  Constitutions  commanded,  attempted  to  del 
egate  the  work  to  Conventions  called  by  themselves  —  a  thing 
clearly  prohibited  by  those  instruments.  It  is  obvious,  that  to 
justify  such  proceedings,  on  legal  grounds,  would  be  to  take 
away  from  the  fundamental  law  that  characteristic  quality  by 
which  it  is  the  law  of  laws  —  the  supreme  law  of  the  land.  If 
it  be  not  the  supreme  law,  for  all  the  purposes  of  a  Constitution, 
in  the  American  sense,  it  might  as  well  be  a  piece  of  blank 
paper. 

In  this  discussion  I  do  not  meddle  with  the  question,  Whether, 
in  the  cases  indicated,  the  course  taken  to  effect  constitutional 
changes  was  necessary  or  not  ?  in  other  words,  Whether  the 
revolution  consummated  by  the  legislatures  of  those  States  was 
unavoidable,  and  so  morally  defensible  ?  It  may  be  admitted, 


216      CONVENTIONS   CALLED   IN   DEFIANCE   OF   THE   GOVERNMENT. 

that  the  constitutional  provisions  I  have  quoted  were  injudi 
cious  ;  that  in  communities  like  ours,  rapidly  increasing  in 
wealth  and  population,  they  were  certain,  sooner  or  later,  to  lead 
to  heart-burnings,  if  not  to  outbreaks  of  revolutionary  violence. 
But  this  does  not  affect  the  legal  question  I  am  discussing, 
namely,  Whether,  tested  by  the  principles  of  our  constitutional 
system,  the  mode  of  securing  the  desired  reforms  did  not  involve 
a  flagrant  usurpation  on  the  part  of  those  legislatures?  There 
is,  in  my  judgment,  no  way  in  which  the  action  of  those  bodies, 
in  those  cases,  can  be  justified,  except  by  affirming  the  legal 
right  of  the  inhabitants  of  a  given  territory,  organized  as  a  body 
politic,  to  meet  at  will,  as  individuals,  without  the  authority  of 
law,  and,  on  their  own  claim  that  they  are  the  people  of  the 
State,  to  dictate  to  the  government  such  changes  in  its  laws, 
Constitution,  or  policy,  as  they  may  deem  desirable.  This  ques 
tion  I  do  not  stop  here  to  discuss,  as  it  will  be  necessary  for 
me  to  consider  it  fully  hereafter,  when  I  come  to  treat  of  the 
remaining  class  of  Conventions,  called  irregularly,  though  for 
legitimate  constitutional  purposes,  to  which  I  now  pass. 

§  226.  2.  The  next  variety  of  Constitutional  Conventions, 
called  irregularly,  namely,  those  called  in  defiance  of  the  exist 
ing  governments  of  the  States  concerned,  though  in  pretended 
conformity  to  constitutional  principles,  embraces  but  a  single 
Convention,  —  the  so-called  "  People's  Convention  "  of  Rhode 
Island,  held  in  1841.1 

For  nearly  two  centuries  prior  to  the  meeting  of  that  Conven 
tion,  Rhode  Island  had  governed  herself  under  a  Charter  of  King 
Charles  II.,  of  a  character  so  democratic  that,  at  the  Revolution, 
it  was  deemed  unnecessary  to  alter  or  abolish  it.  As  the  State 
advanced  in  wealth  and  population,  however,  some  of  the  pro 
visions  of  the  Charter  became  very  unsatisfactory  to  a  large  por 
tion  of  the  citizens,  particularly  that  regulating  the  right  of 
suffrage ;  and  naturally  so ;  for  at  the  time  the  agitation  com 
menced,  which  resulted  in  the  call  of  the  People's  Convention, 
the  legislature  of  Rhode  Island  was  elected  by  less  than  one 
half  of  the  white  male  adult  resident  citizens  of  the  State ;  and 
so  far  was  the  body  from  representing  the  people  proportion 
ately,  that  the  majority  of  the  Assembly  was  elected  by  about 

1  Two  Conventions  were  held  in  Rhode  Island  in  1841,  one  legitimate,  before 
referred  to  (§  219,  note  1),  and  the  other  above  described. 


PEOPLE'S  CONVENTION  OP  RHODE  ISLAND  IN  1841.       217 

one-third  of  the  freemen.1  Rhode  Island,  moreover,  originally 
agricultural,  had  undergone  great  changes,  —  many  of  its  smaller 
towns  becoming  great  manufacturing  centres ;  while  what  were 
once  its  chief  cities  had  become  much  diminished  in  population. 
Thus  Newport,  formerly  the  principal  town,  had  sunk  to  a  pop 
ulation  of  8000,  while  Providence  had  risen  to  nearly  24,000 ; 
yet  Newport  continued  to  be  represented  by  six,  and  Providence 
by  four,  representatives,  which  was  also  the  number  sent  by 
Portsmouth,  whose  population  was  but  1700.2 

To  change  this  system,  efforts  had  been  made  from  time  to 
time  for  many  years.  In  1824,  a  Convention  was  called  by  the 
legislature,  and  a  Constitution  framed  and  submitted  to  the  peo 
ple,  but  was  rejected  by  them.  Ten  years  later  another  Conven 
tion  was  called,  but  broke  up  without  completing  its  task.  In 
January,  1841,  the  legislature  called  a  third  Convention,  which 
met  in  November  following ;  but,  adjourning  for  the  express  pur 
pose,  as  was  declared,  of  obtaining  the  opinion  of  their  constit 
uents  on  the  expediency  of  extending  the  electoral  franchise, 
assembled  again  in  February,  1842,  and  framed  a  Constitution, 
which,  being  submitted  to  the  people  on  the  21st,  22d,  and  23d 
days  of  March,  1842,  was  rejected.  Finally,  in  June,  1842,  a 
fourth  Convention  was  called  by  the  legislature,  which  met  in 
September,  framed  a  Constitution,  and  submitted  it  to  the  peo 
ple  on  the  21st,  22d,  and  23d  days  of  November,  when  it  was 
ratified  and  put  in  operation.3  In  the  mean  time,  however,  before 
this  successful  result  had  been  reached,  the  popular  impatience 
had  vented  itself  in  revolutionary  proceedings,  having  for  their 
object  the  formation  of  a  new  Constitution  without  the  consent 
or  privity  of  the  existing  government.  These  proceedings  will 
be  described  in  the  following  section. 

§  227.  The  efforts  of  those  citizens  who  desired  an  extension 
of  the  right  of  suffrage  in  Rhode  Island,  having  failed,  as  it 
seems,  through  the  unwise  reluctance  to  diminish  their  own 
power,  of  those  who  were  voters  by  existing  laws,  there  were 
formed  throughout  the  State,  in  1840  and  1841,  suffrage  asso 
ciations,  the  object  of  which  was  declared  to  be,  "to  diffuse 
information  among  the  people,  upon  the  question  of  forming  a 
written  republican  Constitution." 

l  Democratic  Rev.  for  1842,  Vol.  II.  p.  70.  a  Ibid. 

3  Bartlett  &  Woodward's  Hist.  U.  S.t  Vol.  HI.  pp.  609,  610. 


218       PEOPLE'S  CONVENTION  OF  RHODE  ISLAND  IN  1841. 

On  the  5th  of  July,  1841,  a  mass  Convention  of  the  friends 
of  the  suffrage  movement  met  at  Providence,  at  which  were  said 
to  have  been  present  six  thousand  free  white  male  inhabitants 
of  the  State,  of  the  age  of  twenty-one  years  and  upwards.  One 
of  the  results  of  the  meeting  was  the  appointment  of  a  State 
committee  with  large  powers  4n  relation  to  the  conduct  of  the 
reform  agitation,  and  among  them  the  power  to  call  a  Conven 
tion  at  a  future  day.  On  the  20th  of  the  same  month,  accord 
ingly,  the  State  committee  issued  a  call,  "by  virtue  of  authority 
in  them  vested  by  the  said  mass  Convention,"  notifying  the 
inhabitants  of  the  several  towns  and  of  the  city  of  Providence, 
to  assemble  together,  and  appoint  delegates  to  a  Convention,  for 
the  purpose  of  framing  a  Constitution  for  the  State,  and  provid 
ing,  that  every  American  male  citizen,  twenty-one  years  of  age 
and  upwards,  who  had  resided  in  the  State  as  his  home,  one 
year  preceding  the  election  of  delegates,  should  have  a  right  to 
vote  for  delegates  to  said  Convention,  to  draft  a  Constitution 
to  be  laid  before  the  people  of  said  State  ;  and  that  every  thou 
sand  inhabitants  in  the  towns  in  said  State  should  be  entitled 
to  one  delegate,  and  each  ward  in  the  city  of  Providence,  to 
three  delegates.1 

In  pursuance  of  this  notification,  certain  of  the  citizens  of 
Rhode  Island,  having  the  prescribed  qualifications,  in  August, 
1841,  elected  delegates  to  a  Convention,  which  met  in  Provi 
dence,  in  October  of  the  same  year,  and  drafted  a  Constitution, 
extending  the  right  of  suffrage  to  every  white  male  adult  citizen 
of  the  United  States,  who  had  resided  one  year  in  the  State, 
and  apportioning  the  representatives  among  the  towns  and  cities 
of  the  State  as  nearly  as  possible  in  proportion  to  their  actual 
population.  Publishing  the  draft,  the  Convention  adjourned  to 
meet  again  in  the  month  of  November,  1841.  On  the  18th  of 
November,  the  delegates  again  met  and  completed  the  draft. 
They  then  submitted  their  so-called  Constitution  to  be  voted 
upon  by  the  people  of  Rhode  Island  ;  the  voters  to  be  American 
citizens,  twenty-one  years  of  age,  and  having  their  permanent 
residence  or  home  in  the  State,  but  without  any  limitation  of 
sex,  color,  place  of  nativity,  or  any  fixed  period  of  residence 
whatever.  The  voters  were  required  to  say  whether  they  were 
qualified  by  the  existing  laws  or  not.  The  vote  was  to  be  taken 
l  Luther  v.  Borden,  7  How.  (U.  S.)  R.  1. 


PEOPLE'S  CONVENTION  OF  RHODE  ISLAND  IN  1841.        219 

on  the  27th,  28th,  and  29th  days  of  December,  1841,  in  open 
meetings,  and  by  an  order  of  the  Convention ;  every  person  who 
"  from  sickness  or  other  cause,"  did  not  vote  on  those  three  days, 
was  authorized  to  send  his  vote  in  to  the  moderator,  within 
three  days  thereafter.1 

§  228.  The  Constitution  thus  framed,  was  submitted  to  the 
people,  as  thus  determined,  and  received,  as  the  returns  showed, 
13,944  votes  in  its  favor  —  a  clear  majority  of  the  whole  num 
ber  of  adult  male  resident  citizens,  of  whom  there  were  in  the 
State  23,000.  Of  the  13,944  votes  cast  for  the  Constitution, 
4960  were  given,  it  was  claimed,  by  persons  having  a  right  to 
vote  under  the  Charter  and  acts  of  the  General  Assembly,  being 
a  majority  of  all  the  voters  qualified  to  vote  by  the  existing  laws, 
of  whom  there  were  in  all  only  about  9000.2 

The  Constitution  having  been  thus  submitted,  and,  as  was 
claimed,  adopted,  on  the  12th  of  January,  1842,  at  an  adjourned 
session  of  the  Convention,  there  were  passed  the  following  pre 
amble  and  resolution  :  — 

"  Whereas,  by  the  return  of  the  votes  upon  the  Constitution, 
proposed  to  the  citizens  of  this  State  by  this  Convention,  the 
18th  day  of  November  last,  it  satisfactorily  appears,  that  the 
citizens  of  this  State,  in  their  original  sovereign  capacity,  have 
ratified  and  adopted  said  Constitution,  by  a  large  majority ;  and 
the  will  of  the  people,  thus  decisively  made  known,  ought  to  be 
implicitly  obeyed  and  faithfully  executed  ; 

"  We  do  therefore  resolve  and  declare,  that  said  Constitution 
rightfully  ought  to  be,  and  is,  the  paramount  law  and  Constitu 
tion  of  the  State  of  Rhode  Island  and  Providence  Plantations ; 
and  we  further  resolve  and  declare,  for  ourselves  and  in  behalf 
of  the  people  whom  we  represent,  that  we  will  establish  said 
Constitution,  and  sustain  and  defend  the  same  by  all  necessary 
means. 

"  Resolved,  That  the  officers  of  this  Convention  make  procla 
mation  of  the  return  of  the  votes  upon  the  Constitution,  and  that 

1  Considerations  on  the  Questions  of  the  Adoption  of  a  Constitution  and  Exten 
sion  of  Suffrage  in  Rhode  Island.     By  Elisha  E.  Potter,  p.  19. 

2  Democratic  Rev.  for  1842,  Vol.  II.  p.  71.     On  the  other  hand,  it  has  been 
denied,  apparently  upon  good  grounds,  that  the  people's  Constitution  received 
a  majority  of  the  votes  either  of  all  the  American  citizens  in  the  State,  over 
twenty-one  years  of  age,  or  of  the  legally  qualified  freemen.     See  Considera 
tions,  #*c.,  by  Elisha  R.  Potter,  Appendix,  No.  4,  p.  57. 


220  JUDICIAL   DECISIONS   RELATING   TO 

the  same  has  been  adopted  and  become  the  Constitution  of  this 
State ;  and  that  they  cause  said  proclamation  to  be  published 
in  the  newspapers  of  the  same." 

The  Constitution  was  proclaimed,  as  ordered  by  the  Conven 
tion,  an  election  of  officers  under  it  was  held,  at  which  Thomas 
W.  Dorr  was  elected  Governor,  and  a  legislature  was  chosen, 
which  met  on  the  3d  of  May,  1842,  and  having  taken  the  proper 
initiatory  steps  to  organize  the  new  government,  adjourned,  leav 
ing  to  the  executive  the  responsibility  of  sustaining  it  against 
the  attacks  of  the  old  government.  This,  the  pretended  Gov 
ernor,  Dorr,  attempted  to  do.  Two  separate  efforts  were  made 
to  inaugurate  by  force  the  new  government,  —  the  first  in  May, 
1842,  and  the  last  one  on  the  29th  of  June,  1842.  The  old  gov 
ernment,  however,  prevailed ;  Dorr  was  driven  into  exile,  but 
finally  returning,  was  tried  for  treason,  convicted,  and  sentenced 
to  imprisonment  for  life. 

§  229.  In  several  legal  trials  growing  out  of  the  movement 
just  described,  the  question  of  the  legitimacy  of  the  "  People's 
Constitution,"  was  brought  directly  under  discussion,  both  in 
the  State  and  Federal  courts. 

The  old  government  of  Rhode  Island  caused  prosecutions  to 
be  instituted  in  the  courts  of  the  State  against  some  of  the  per 
sons  concerned  in  the  forcible  measures  above  indicated.  In 
defending  these  actions,  the  parties  prosecuted  offered  evidence 
of  the  proceedings,  resulting  in  the  formation  of  the  new  Con 
stitution,  and  requested  the  courts  to  charge  the  jury,  that  "the 
proposed  Constitution  had  been  adopted  by  the  people  of  Rhode 
Island,  and  had,  therefore,  become  the  established  government ; 
and,  consequently,  that  the  parties  accused  were  doing  nothing 
more  than  their  duty  in  endeavoring  to  support  it." 

The  State  courts,  however,  uniformly  held,  that  "  the  inquiry," 
as  to  the  legitimacy  of  the  new  Constitution,  "belonged  to  the 
political  power  of  the  State,  and  not  to  the  judicial;  that  it 
rested  with  the  political  power  to  decide  whether  the  Charter 
government  had  been  displaced  or  not ;  and  when  that  decision 
was  made,  the  judicial  department  would  be  bound  to  take  no 
tice  of  it  as  the  paramount  law  of  the  State,  without  the  aid  of 
oral  evidence  or  the  examination  of  witnesses ;  that,  according 
to  the  laws  and  institutions  of  Rhode  Island,  no  such  change 
i  Luther  v.  Borden,  7  How.  (U.  S.)  R.  1. 


THE  PEOPLE'S  CONVENTION  OF  RHODE  ISLAND.          221 

had  been  recognized  by  the  political  power ;  and  that  the  Charter 
government  was  the  lawful  and  established  government  of  the 
State  during  the  period  in  contest,  and  that  those  who  were  in 
arms  against  it  were  insurgents,  and  liable  to  punishment." 

The  same  question  was  afterwards  passed  upon  by  the  Su 
preme  Court  of  the  United  States,  in  the  case  of  Luther  v. 
Borden,  carried  up  by  writ  of  error  from  the  Circuit  Court  of 
Rhode  Island.  The  facts  of  the  case  were  briefly  these  :  — 
The  Charter  government  of  that  State  had  declared  martial  law, 
and  raised  a  military  force  to  protect  itself  against  the  attempts 
of  the  suffrage  party  to  subvert  it.  On  the  29th  of  June,  1842, 
at  the  time  the  second  attempt  was  made  by  Dorr  to  inaugurate 
his  pretended  new  government  by  military  force,  Luther  M. 
Borden  and  others,  composing  a  part  of  a  regiment  of  militia, 
raised  and  acting  under  the  authority  of  the  Charter  govern 
ment,  in  obedience  to  orders  from  their  commanding  officers, 
broke  and  entered  the  dwelling-house  of  Martin  Luther,  an  ad 
herent  of  Dorr,  for  the  purpose  of  arresting  him  as  aiding  and 
abetting  the  insurrection.  Luther  thereupon  brought  an  action 
of  trespass,  quare  clausum  fregit,  against  Borden  and  his  asso 
ciates,  in  the  Circuit  Court  of  the  United  States  for  the  Dis 
trict  of  Rhode  Island,  to  try  the  question  of  the  relative  validity 
of  the  two  governments.  The  defendants  justified  their  entry 
by  setting  up  the  Charter  of  the  colony,  the  establishment  of  the 
Union  between  Rhode  Island,  under  the  Charter,  and  the  other 
States  composing  the  United  States,  and  the  acts  of  the  general 
government  and  of  the  several  States,  recognizing  the  State  of 
Rhode  Island  as  a  member  of  the  Union,  under  its  said  Charter. 
They  showed  further  the  assembling  together  of  the  suffrage 
party  for  the  purpose  of  overthrowing  the  established  govern 
ment  of  the  State,  the  declaration  of  martial  law,  and  the  or 
ganization  of  the  military  force  under  the  Charter  government, 
of  which  they  constituted  a  part,  and  claimed  that,  in  breaking 
and  entering  the  dwelling-house  of  the  plaintiff,  they  were  acting 
under  orders  from  the  existing  government,  rightfully  and  law 
fully  issued. 

§  230.  To  this  the  plaintiff  replied,  exhibiting  in  detail  the 
proceedings  above  described,  resulting  in  the  proclamation  by 
the  suffrage  party  of  a  new  Constitution,  and  in  the  forcible 
attempts  of  Dorr  to  establish  it.  After  offering  evidence  to 


222  JUDICIAL   DECISIONS  RELATING  TO 

prove  the  case  on  his  part,  as  stated,  the  plaintiff  requested  the 
judge  (the  Hon.  Joseph  Story)  to  charge  the  jury,  "that  under 
the  facts  offered  in  evidence  by  the  plaintiff,  the  Constitution 
and  frame  of  government  prepared,  adopted  and  established  in 
the  manner  and  form  set  forth  and  shown,  thereby  was  and 
became  the  supreme  law  of  the  State  of  Rhode  Island,  and  was 
in  full  force  and  effect,  as  such,  during  the  time  set  forth  in  the 
plaintiff's  declaration,  when  the  trespass  alleged  therein  was 
committed  by  the  defendants,  as  admitted  by  their  pleas ;  that 
a  majority  of  the  free  white  male  citizens  of  Rhode  Island,  of 
twenty-one  years  and  upwards,  in  the  exercise  of  the  sovereignty 
of  the  people  through  the  forms  and  in  the  manner  set  forth  in 
the  evidence  offered  by  the  plaintiff,  and  in  the  absence,  under 
the  then  existing  frame  of  government  of  the  said  State  of 
Rhode  Island,  of  any  provision  therein  for  amending,  changing, 
or  abolishing  the  said  frame  of  government,  had  the  right  to 
reassume  the  powers  of  government,  and  establish  a  written 
Constitution  and  frame  of  a  republican  form  of  government; 
and  that  having  so  exercised  such  right,  as  aforesaid,  the  preex 
isting  Charter  government,  and  the  authority  and  assumed  laws, 
under  which  the  defendants  in  their  plea  claimed  to  have  acted, 
became  null  and  void  and  of  no  effect,  so  far  as  they  were  re 
pugnant  to  and  conflicted  with  said  Constitution,  and  are  no 
justification  of  the  acts  of  the  defendants  in  the  premises."1 

The  court  rejected  the  testimony  offered,  and  refused  to  give 
the  instructions  asked  by  the  plaintiff;  but,  on  the  contrary, 
instructed  the  jury,  that  the  Charter  government  and  laws,  under 
which  the  defendants  acted,  were,  at  the  time  the  trespass  was 
alleged  to  have  been  committed,  in  full  force  and  effect,  as  the 
form  of  government  and  permanent  law  of  the  State,  and  con 
stituted  a  justification  of  the  acts  of  the  defendants,  as  set  forth 
in  their  pleas.2 

To  this  decision  of  the  court  exceptions  were  taken,  and  the 
case  was  carried  by  writ  of  error  to  the  Supreme  Court  of  the 
United  States. 

Before  giving  the  decision  of  the  latter  upon  the  case,  it 
should  be  noted,  that,  at  the  time  the  people's  party  assailed 
the  Charter  government  with  military  force,  the  executive  of 

1  Luther  v.  Borden,  7  How.  (U.  S.)  B.  1. 

2  Id.  p.  38. 


THE  PEOPLE'S  CONVENTION  OF  RHODE  ISLAND.  223 

the  latter  government  made  application  to  the  President  of  the 
United  States  for  aid  in  maintaining  the  same,  under  the  fourth 
section  of  the  fourth  article  of  the  Constitution,  guaranteeing  to 
each  State  of  the  Union,  on  the  application  of  its  legislature, 
or,  when  the  legislature  could  not  be  convened,  on  that  of  its 
executive,  protection  "  against  domestic  violence ; "  and  the 
President  promised  the  necessary  support,  and  took  measures 
to  call  out  the  militia  to  sustain  the  Charter  government. 

§  231.  Upon  these  facts,  the  Supreme  Court,  Chief  Justice 
Taney,  delivering  the  opinion,  held  — 

First.  That  the  question  involved  in  the  case  related  alto 
gether  to  the  Constitution  and  laws  of  one  of  the  States  of  the 
Union,  and  that  it  was  the  well-settled  rule  in  the  courts  of  the 
United  States,  that  the  latter  adopt  and  follow  the  decisions  of 
the  State  courts  in  questions  which  concern  merely  the  Constitu 
tion  and  laws  of  such  States  ;  that  the  courts  of  the  United 
States  have  undoubtedly  certain  powers  under  the  Constitution 
and  laws  of  the  United  States,  which  do  not  belong  to  the 
State  courts,  but  that  the  power  of  determining  that  a  State 
government  has  been  lawfully  established,  which  the  courts  of 
the  State  disown  and  repudiate,  is  not  one  of  them  ;  that,  upon 
such  a  question,  the  courts  of  the  United  States  are  bound  to 
follow  the  decisions  of  the  State  tribunals,  and  that,  inasmuch 
as  the  courts  of  Rhode  Island  had  affirmed  the  validity  of  the 
Charter  government,  and  the  invalidity  of  the  pretended  new 
one  seeking  to  supplant  it,  the  courts  of  the  United  States  must, 
therefore,  regard  the  Charter  government  as  the  lawful  and  estab 
lished  government  "  during  the  time  of  this  contest."  l 

Secondly.  That  the  fourth  section  of  the  fourth  article  of  the 
Constitution  of  the  United  States  provides,  that  the  United 
States  shall  guarantee  to  every  State  in  the  Union  a  republican 
form  of  government,  and  shall  protect  each  of  them  against  in 
vasion  ;  and,  on  the  application  of  the  legislature,  or  of  the  exec 
utive  (when  the  legislature  cannot  be  convened),  against  do 
mestic  violence ;  that,  under  this  article  of  the  Constitution,  it 
rests  with  Congress  to  decide  what  government  is  the  estab 
lished  one  in  a  State  ;  for,  as  the  United  States  guarantee  to 
each  State  a  republican  government,  Congress  must  necessarily 
decide  what  government  is  established  in  the  State  before  it  can 
l  Luther  v.  Borden,  7  How.  (U.  S.)  R.  40. 


224      PEOPLE'S  CONVENTION  CONSIDERED  UPON  PRINCIPLE. 

determine  whether  it  is  republican  or  not;  and  when  the  sena 
tors  and  representatives  of  a  State  are  admitted  into  the  coun 
cils  of  the  Union,  the  authority  of  the  government  under  which 
they  are  appointed,  as  well  as  its  republican  character,  is  recog 
nized  by  the  proper  constitutional  authority,  and  its  decision  is 
binding   on    every   other   department  of  the    government,  and 
could  not  be  questioned  in  a  judicial  tribunal.     So,  too,  as  re 
lates  to  the  clause  of  the  Constitution  providing  for  cases  of 
domestic  violence,   it  rested  with  Congress  to  determine  upon 
the  means  proper  to  be  adopted  to  fulfil  this  guarantee.     They 
might,  if  they  had  deemed   it  most  advisable  to  do  so,  have 
placed  it  in  the  power  of  a  court  to  decide  when  the  contingency 
had  happened  which  required  the  Federal  government  to  inter 
fere.     But  Congress  thought  otherwise  ;  and  by  the  Act  of  Feb. 
28,  1795,  provided,  that  "  in  case  of  an  insurrection  in  any  State 
against  the  government  thereof,  it  shall  be  lawful  for  the  Presi 
dent  of  the  United  States,  on  application  of  the  legislature  of 
such  State,  or  of  the  executive  (when  the  legislature  cannot  be 
convened),  to  call  forth  such  number  of  the  militia  of  any  other 
State  or  States  as  maybe  applied  for,  as  he  may  judge  sufficient 
to  suppress  such  insurrection  ;  "  that  this  power,  conferred  upon 
the  President  by  the  Constitution  and  laws  of  the  United  States, 
belonged  to  him  exclusively ;   that  the  President  had  acted  in 
the  case  of  Rhode  Island,  not,  it  was  true,  by  actually  calling 
out  the  militia,  on  the  application  of  the  Governor  of  Rhode 
Island,  under  the  Charter  government,  but  by  recognizing  him  as 
the  executive  of  the  State,  and  by  taking  measures  to  call  out 
the  militia  to  support  his  authority,  if  it  should  be  found  neces 
sary  for  the  general  government  to  interfere  ;  that  this  interfer 
ence  of  the  President  by  announcing  his  determination,  was  as 
efficient  as  if  the  militia  had  been  assembled  under  his  orders ; 
that  it  ought  to  be  equally  authoritative;  and  that  no  court  of 
the  United  States  would,  knowing  this  decision,  be  justified  in 
recognizing  the  opposing  party  as  the  lawful  government.1 

For  these  reasons,  the  judgment  of  the  circuit  court,  acquit 
ting  the  defendants,  was  affirmed. 

§  232.    It  is  perhaps  unfortunate  that  the  question  involved  in 
this  case  could  not  have  been  decided  by  the  Supreme  Court  of 
the  United   States,  directly  upon   principle.      As   in   the   case 
l  Luther  v.  Borden,  7  How.  (U.  S.)  K.  44. 


ARGUMENT   OF   MR.    HALLETT   IN   THE   SUPREME   COURT.       225 

which  went  up  from  Michigan,  involving  the  legitimacy  of  the 
State  government  organized  in  the  territory  of  that  name  in  1835,1 
so,  in  that  of  Luther  v.  Borden,  the  question  discussed  was 
treated  in  the  Supreme  Court  as  one  simply  of  jurisdiction,  the 
court  abstaining  from  expressing  any  opinion  on  the  points  most 
interesting  to  us  in  this  discussion.  Upon  the  merits  of  the  con 
troversy,  therefore,  judicial  authority  is  wholly  wanting,  save  as 
it  is  derived  from  the  adjudications  of  the  courts  of  the  State, 
which  obviously  cannot  be  considered  as  conclusive.  To  deter 
mine,  then,  the  question  as  to  the  right  of  the  citizens  of  a  State 
to  alter  or  abolish  their  political  Constitution,  without  the  con 
sent  of  the  existing  government,  we  are  compelled  to  recur  to 
fundamental  principles.  For  such  a  discussion  we  are  happily 
not  without  abundant  materials.  In  the  argument  of  Luther  v. 
Borden  in  the  Supreme  Court,  Mr.  Webster  and  Mr.  Hallett, 
counsel  respectively  for  the  Charter  government  of  Rhode  Island, 
and  for  the  plaintiffs  in  error,  representing  the  Dorr  government, 
met  the  case  fairly  and  squarely,  expounding  with  very  great 
ability  the  principles  involved,  upon  which  alone  they  sought  to 
rest  the  cause  of  their  clients.  Perhaps  I  could  not  better  ex 
hibit  the  true  doctrine  on  the  question  than  by  transcribing, 
within  reasonable  limits,  and  contrasting  the  arguments  of  those 
gentlemen,  who,  to  eminent  ability  and  learning  as  lawyers, 
added  a  special  fitness  for  this  discussion,  as  being  leading  mem 
bers  of  the  two  great  political  parties  of  the  time,  which  had 
ranged  themselves,  in  the  main,  upon  opposite  sides  in  the 
Rhode  Island  controversy. 

§  233.  In  behalf  of  the  plaintiff  in  error,  Martin  Luther,  Mr. 
Hallett  urged :  —  That  the  fundamental  principle  of  the  Amer 
ican  system  of  government  is,  that  government  is  instituted  by 
the  people,  and  for  the  benefit,  protection,  and  security  of  the 
people,  nation,  or  community ;  and  that  when  any  government 
shall  be  found  inadequate  or  contrary  to  these  purposes,  a  major 
ity  of  the  community  has  an  indubitable,  inalienable,  and  inde 
feasible  right  to  alter  or  abolish  the  same,  in  such  manner  as 
shall  be  judged  most  conducive  to  the  public  weal ;  that  the 
terms  "  community,"  "  society,"  "  state,"  "  nation,"  "  body  of  the 
community,"  "  great  body  of  the  people,"  are  used  by  early  polit 
ical  writers  as  synonymous  with  the  word  "  people ; "  and  that 

l  Ante,  §§  207,  208. 
15 


226       ARGUMENT   OF  MB.    HALLETT   IN   THE  SUPREME   COURT. 

all  the  American  writers  use  the  term  "  people  "  to  express  the 
entire  numerical  aggregate  of  the  community,  whether  state  or 
national,  in  contradistinction  to  the  government  or  legislature  ; 
that  in  the  people,  as  thus  defined,  resides  the  ultimate  power  of 
sovereignty  ;  that  it  is  the  people,  or  sovereign,  that  has  the  sole 
right  to  establish  government,  and,  when  deemed  necessary,  to 
alter  or  abolish  it ;  and  that  according  as  well  to  the  teachings  of 
the  best  political  writers  as  to  the  positive  affirmations  of  many 
of  our  Constitutions,  the  people  may  meet  when  and  where  they 
please,  and  dispose  of  the  sovereignty,  or  limit  the  exercise  of 
it ;  that  the  doctrine  that  legislative  action  or  sanction  is  neces 
sary,  as  the  mode  of  effecting  a  change  of  State  government,  is 
anti-republican  and  novel,  having  been  broached  for  the  first 
time  under  the  United  States  government,  in  the  debate  in 
Congress  upon  the  admission  of  Michigan,  December,  1836 ; 
that,  in  the  United  States,  no  definite  uniform  mode  has  ever 
been  established  for  either  instituting  or  changing  a  form  of 
State  government ;  that  the  State  legislatures  have  no  power  or 
authority  over  the  subject,  and  can  interfere  only  by  usurpation, 
any  further  than  like  other  individuals,  to  recommend ;  that  the 
great  body  of  the  people  may  change  their,  form  of  government 
at  any  time,  in  any  peaceful  way,  and  by  any  mode  of  opera 
tions  that  they  for  themselves  determine  to  be  expedient ;  that, 
even  where  a  subsisting  Constitution  points  out  a  particular 
mode  of  change,  the  people  are  not  bound  to  follow  the  mode 
pointed  out,  but  may,  at  their  pleasure,  adopt  another;  that, 
where  no  Constitution  exists,  and  no  fundamental  law  prescribes 
any  mode  of  amendment,  then  they  must  adopt  a  mode  for 
themselves ;  and  the  mode  they  do  adopt,  when  ratified  or  ac 
quiesced  in  by  a  majority  of  the  people,  is  binding  upon  all ;  that 
it  is  a  well-settled  rule  in  the  United  States,  that  a  State  Con 
stitution,  being  the  deliberate  expression  of  the  sovereign  will  of 
the  people,  takes  effect  from  the  time  that  will  is  unequivocally 
expressed  in  the  manner  provided  in  and  by  the  Constitution 
itself;  that  is,  from  the  time  of  its  ratification  by  the  vote  of  the 
people,  which,  in  the  language  of  Washington,  is  of  itself  "  an 
explicit  and  authentic  act  of  the  whole  people  ;  "  that  this  right 
of  the  people  to  change,  alter,  or  abolish  their  government,  in 
such  manner  as  they  please,  is  a  right  not  of  force  but  of  sov 
ereignty  ;  that  whatever  may  be  the  case  with  the  Federal  gov- 


ARGUMENT  OP  MR.  WEBSTER  IN  THE  SUPREME  COURT.   227 

ernment,  no  right  of  revolution,  in  the  common  and  European 
sense  of  the  term,  implying  a  change  by  force,  is  anywhere 
sanctioned,  so  far  as  the  individual  States  are  concerned,  in  the 
Constitution  of  the  United  States  ;  that  a  revolution  by  force, 
inasmuch  as  it  includes  insurrection  and  rebellion,  which  con 
stitute  "  domestic  violence,"  against  which,  by  the  Federal  Con 
stitution,  Congress  is  bound  to  guarantee  the  States,  can  never 
be  resorted  to  within  the  limits  of  that  Constitution,  while  a 
State  remains  in  the  Union ;  that,  therefore,  when  our  best  writ 
ers  and  our  Constitutions  affirm  the  existence  of  the  right  above 
asserted  in  the  people,  they  affirm  a  right  to  be  exercised,  not 
by  force,  but  by  peaceful  and  constitutional  methods  ;  that,  as  a 
consequence  of  these  principles  of  government  and  sovereignty, 
acknowledged  and  acted  upon  in  the  United  States  and  the 
several  States  thereof,  at  least  ever  since  the  Declaration  of 
Independence,  the  Constitution  and  frame  of  government,  pre 
pared,  adopted,  and  established  by  the  "  People's  Convention  " 
in  Rhode  Island,  as  above  set  forth,  was  and  became  thereby  the 
supreme  fundamental  law  of  the  State  of  Rhode  Island,  and  was 
in  full  force  and  effect  as  such,  when  the  trespass  alleged  in  the 
plaintiff's  writ  was  committed  by  the  defendants.1 

§  234.  The  argument  of  Mr.  Webster  in  reply  to  this  most 
ingenious  defence  of  anarchical  principles,  consisted  mainly  in  a 
masterly  statement  of  the  principles  of  the  American  system  of 
government.  It  was  in  substance  as  follows:  — 

That  without  going  into  historical  details,  the  principles  on 
which  the  American  system  rests,  are,  first  and  chief,  that  the 
people  are  the  source  of  all  political  power,  government  being 
instituted  for  their  good,  and  its  members,  their  servants  and 
agents ;  and,  secondly,  that,  as  the  exercise  of  legislative  power 
and  the  other  powers  of  government  immediately  by  the  people 
themselves,  is  impracticable,  they  must  be  exercised  by  represent 
atives  of  the  people  ;  that  the  basis  of  representation  is  suffrage ; 
that  the  right  to  choose  representatives  is  every  man's  part  in  the 
exercise  of  sovereign  power ;  to  have  a  voice  in  it,  if  he  has  the 
proper  qualifications,  is  the  portion  of  political  power  belonging 
to  every  elector ;  that  that  is  the  beginning,  the  mode  in  which 
power  emanates  from  its  source  and  gets  into  the  hands  of 
Conventions,  legislatures,  courts  of  law,  and  the  chair  of  the  ex- 
1  Luther  v.  Borden,  7  How.  (U.  S.)  R.  19-27. 


228       ARGUMENT   OF  MR.    WEBSTER   IN   THE   SUPREME   COURT. 

ecutive  ;  that  it  begins  in  suffrage  —  suffrage  being  the  delega 
tion  of  power  of  an  individual  to  some  agent ;  that,  this  being 
so,  there  follow  two  other  great  principles  of  the  American  sys 
tem  :  first,  that  the  right  of  suffrage  shall  be  guarded,  protected, 
and  secured  against  force  and  fraud  ;  and,  secondly,  that  its  ex 
ercise  shall  be  prescribed  by  previous  law;  that  is,  that  its  quali 
fications,  and  the  time,  place  and  manner  of  its  exercise,  under 
whose  supervision  (always  sworn  officers  of  the  law)  are  to  be 
prescribed  by  previous  law ;  and  that  its  results  are  to  be  certi 
fied  to  the  central  power  by  some  certain  rule,  by  some  known 
public  officers,  in  some  clear  and  definite  form,  to  the  end  that 
two  things  may  be  done  —  first,  that  every  man  entitled  to  vote 
may  vote,  and,  second,  that  his  vote  may  be  sent  forward  and 
counted,  and  so  he  may  exercise  his  part  of  sovereignty,  in 
common  with  his  fellow-citizens ;  that  not  only  do  the  people 
limit  their  governments,  National  and  State  —  it  is  another  prin 
ciple,  equally  true  and  important  that  they  often  limit  them 
selves  ;  that  they  set  bounds  to  their  own  power ;  securing  the 
institutions  which  they  establish  against  the  sudden  impulses  of 
mere  majorities  ;  thus,  by  the  5th  Article  of  the  Constitution, 
Congress,  two-thirds  of  both  Houses  concurring,  may  propose 
amendments  of  the  Constitution,  or  on  the  application  of  the 
legislatures  of  two-thirds  of  the  States,  may  call  a  Convention  — 
the  amendments  proposed,  in  either  case,  to  be  ratified  by  the 
legislatures  or  Conventions  of  three-fourths  of  the  States ;  that 
they  also  limit  themselves  in  regard  to  the  qualifications  of 
electors,  and  in  regard  to  the  qualifications  of  the  elected ;  they 
also  limit  themselves  to  certain  prescribed  forms  for  the  conduct 
of  elections, — it  being  required,  that  they  shall  vote  at  a  particu 
lar  place,  at  a  particular  time,  and  under  particular  conditions, 
or  not  at  all ;  that  it  is  in  these  modes  we  are  to  ascertain  the 
will  of  the  American  people,  and  that  our  Constitutions  and  laws 
know  no  other  mode ;  that  we  are  not  to  take  the  will  of  the 
people  from  public  meetings,  nor  from  tumultuous  assemblies, 
by  which  the  timid  are  terrified,  the  prudent  alarmed,  and  society 
disturbed  ;  and  that,  if  any  thing  in  the  country,  not  ascertained 
by  a  regular  vote,  by  regular  returns,  and  by  regular  representa 
tion,  has  been  established,  it  is  an  exception  and  not  the  rule. 

§  235.  Referring  to  the  same  principles,  he  continued  :  That  it 
is  true,  at  the  Revolution,  when  all  government  was  dissolved, 


ARGUMENT   OF   MR.    WEBSTER   IN   THE   SUPREME   COURT.        229 

the  people  got  together  and  began  an  inceptive  organization,  the 
object  of  which  was  to  bring  together  representatives  of  the  peo 
ple  who  should  form  a  government ;  that  this  was  the  mode  of 
proceeding  in  those  States  where  their  legislatures  were  dissolved; 
that  it  was  much  like  that  had  in  England  upon  the  abdication 
of  King  James  II. ;  he  ran  away,  he  abdicated,  and  King  Wil 
liam  took  the  government,  and  how  did  he  proceed?  He  at 
once  requested  all  who  had  been  members  of  the  old  Parliament, 
of  any  regular  Parliament,  in  the  time  of  Charles  II.,  to  assem 
ble  ;  the  Peers,  being  a  standing  body,  could,  of  course,  assem 
ble  ;  and  all  they  did  was  to  recommend  the  calling  of  a  Conven 
tion,  to  be  chosen  by  the  same  electors,  and  composed  of  the 
same  numbers  as  composed  a  Parliament;  the  Convention  assem 
bled,  and,  as  all  know,  was  turned  into  a  Parliament ;  that  this 
was  a  case  of  necessity,  a  revolution,  so-called,  not  because  a 
new  sovereign  then  ascended  the  throne  of  the  Stuarts,  but 
because  there  was  a  change  in  the  organization  of  the  govern 
ment  ;  that  the  legal  and  established  succession  was  broken ; 
the  Convention  did  not  assemble  under  any  preceding  law;  there 
was  a  hiatus,  a  syncope,  in  the  action  of  the  body  politic  ;  this 
was  a  revolution,  and  the  Parliaments  that  assembled  afterwards 
referred  their  legal  origin  to  that  revolution. 

Is  it  not  obvious  enough,  he  asked,  that  men  cannot  get  to 
gether  and  count  themselves,  and  say  there  are  so  many  hun 
dreds,  and  so  many  thousands,  and  judge  of  their  own  qualifica 
tions,  and  call  themselves  the  people,  and  set  up  a  government  ? 
Why,  said  he,  another  set  of  men.  forty  miles  off,  on  the  same 
day,  and  in  as  large  numbers,  may  meet  and  set  up  another 
government,  and  both  may  call  themselves  the  people.  What 
is  this  but  anarchy  ? 

Another  American  principle  growing  out  of  this,  said  Mr. 
Webster,  and  just  as  important  and  well  settled  as  is  the  truth, 
that  the  people  are  the  source  of  power  is,  that  when,  in  the 
course  of  events,  it  becomes  necessary  to  ascertain  the  will  of 
the  people  on  a  new  exigency,  or  a  new  state  of  things  or  of 
opinion,  the  legislative  power  provides  for  that  ascertainment  by 
an  ordinary  act  of  legislation.  Has  not  that  been  our  whole 
history?  The  old  Congress,  upon  the  suggestion  of  the  del 
egates  who  assembled  at  Annapolis,  in  May,  1786,  recommended 
to  the  States  that  they  should  send  delegates  to  a  Convention 


230        ARGUMENT   OF   MR.    WEBSTER   IN   THE   SUPREME   COURT. 

to  be  holden  at  Philadelphia,  to  form  a  Constitution.  No  article 
of  the  old  Confederation  gave  them  power  to  do  this,  but  they 
did  it,  and  the  States  did  appoint  delegates,  who  assembled  at 
Philadelphia,  and  formed  the  Constitution.  It  was  communi 
cated  to  the  old  Congress,  and  that  body  recommended  to  the 
States  to  make  provision  for  calling  the  people  together  to  act 
upon  its  adoption.  Was  not  that  exactly  the  case  of  passing  a 
law  to  ascertain  the  will  of  the  people  in  a  new  exigency  ?  And 
this  method  was  adopted  without  opposition,  nobody  suggesting 
that  there  could  be  any  other  mode  of  ascertaining  the  will  of 
the  people.  The  counsel  for  the  plaintiff  in  error  went  through 
the  Constitutions  of  several  of  the  States.  It  is  enough  to  say, 
in  reply,  that  of  the  old  thirteen  States,  the  Constitutions,  with 
but  one  exception,  contained  no  provision  for  their  own  amend 
ment.  In  New  Hampshire,  there  was  a  provision  for  taking  the 
sense  of  the  people  once  in  seven  years.  Yet  there  is  hardly 
one  that  has  not  altered  its  Constitution,  and  it  has  been  done 
by  Conventions  called  by  the  legislative  power.  Now,  what 
State  ever  altered  its  Constitution  in  any  other  mode  ?  What 
alteration  has  ever  been  brought  in,  put  in,  forced  in,  or  got  in 
any  how,  by  resolutions  of  mass-meetings,  and  then  by  applying 
force?  In  what  State  has  an  assembly,  calling  itself  the  people, 
convened  without  law,  without  authority,  without  qualifications, 
without  certain  officers,  with  no  oaths,  securities,  or  sanctions 
of  any  kind,  met  and  made  a  Constitution,  and  called  it  the 
Constitution  of  the  State  ?  There  must  be  some  authentic 
mode  of  ascertaining  the  will  of  the  people,  else  all  is  anarchy. 
It  resolves  itself  into  the  law  of  the  strongest,  or,  what  is  the 
same  thing,  of  the  most  numerous  for  the  moment,  and  all  Con 
stitutions  and  all  legislative  rights  are  prostrated  and  disre 
garded. 

To  these  arguments  he  added  another,  founded  on  the  pro 
vision  of  the  Federal  Constitution  (Article  4,  section  4),  similar 
in  its  terms  to  that  contained  in  the  opinion  of  the  Supreme 
Court,  already  referred  to,  showing  that  the  Charter  government 
of  Rhode  Island  was  the  only  one  that  could  be  recognized  by 
the  court  or  by  the  government  of  the  United  States,  which,  by 
its  own  Constitution,  was  pledged  to  protect  and  maintain  it. 

§  236.  It  seems  presumptuous  to  attempt  to  add  any  thing  to 
an  argument  so  solid  and  conclusive  as  that  of  Mr.  Webster, 


OBSERVATIONS   UPON  MB.    HALLETT'S   ARGUMENT.  231 

but  I  cannot  forbear  from  remarking  upon  two  or  three  points 
made  by  Mr.  Hallett. 

1.  Combating  "the  doctrine  that  legislative  action  or  sanction 
is  necessary,  as  the  mode  of  effecting  a  change  of  State  govern 
ment,"  as  "  anti-republican  and  novel,"  Mr.  Hallett  asserted, 
that,  "  in  the  United  States,  no  definite  uniform  mode  has  ever 
been  established  for  either  instituting  or  changing  a  form  of  State 
government."  This  is  true,  if,  by  the  establishment  of  a  definite 
uniform  mode,  be  meant  the  prescribing  of  such  a  mode  by  a 
provision  of  either  the  Federal  or  State  Constitutions,  so  as  to 
be  binding  upon  the  States.  But  it  is  not  essential  to  the  estab 
lishment  of  such  a  mode,  that  it  should  be  done  by  constitu 
tional  provision.  The  common  practice  of  all  the  States,  as  well 
as  of  the  United  States,  rarely  departed  from  even  amidst  the 
distractions  of  the  Revolution,  according  to  which  the  calling 
of  Conventions  for  the  purpose  of  "  either  instituting  or  changing 
a  form  of  government,"  is  left  to  the  proper  legislative  authority 
in  each  case,  is  itself  a  part  of  the  common  law  of  the  land, 
from  which,  except  in  cases  of  necessity,  to  be  judged  of  only 
by  the  same  legislative  authority,  no  departure  ought  to  be  tol 
erated.  Such  a  mode  is  not  only  established,  but  it  is  as  definite 
and  uniform  as  any  mode  can  be,  consistently  with  safety. 

§  237.  2.  The  capital  point  in  Mr.  Hallett's  argument,  how 
ever,  was,  that  it  is  a  right  of  the  people  to  change,  alter,  or  abol 
ish  their  government,  in  such  manner  as  they  please"  and  that  this 
right  "  is  a  right,  not  of  force,  but  of  sovereignty" 

Now,  if  in  this  extract,  by  the  word  "  people,"  be  meant  the 
nation,  considered  as  a  political  unit,  I  observe  that,  conceding 
the  right  claimed  for  it  to  exist,  the  exercise  of  that  right  would 
be  wholly  impracticable.  The  people,  in  that  sense,  never  did, 
and  never  could  act  directly  ;  it  could  act  only  by  a  delegation 
of  its  authority,  as,  to  the  legislature,  to  the  electors,  and  the 
like,  —  the  terms  and  conditions  of  that  delegation  being  pre 
scribed  in  the  Constitution.  The  right  of  the  people  then,  in 
this  sense  of  the  term,  if  it  exist,  is  a  right  that1  never  has  been, 
and  never  can  be  exercised ;  that  is,  is,  practically,  not  a  right 
at  all. 

But,  were  there  no  such  inherent  impracticability ;  if  the  en 
tire  population  of  a  State  could,  as  it  is  often  expressed,  "  meet 
upon  some  vast  plain,"  so  long  as  that  population  was  organized 


232  OBSERVATIONS  UPON  MR.    HALLETl's   ARGUMENT. 

under  a  Constitution,  like  those  with  which  we  are  familiar, 
though  it  would  be  physically  able  to  carry  into  execution  such 
ordinances  as  should  get  themselves  passed  at  its  tumultuous 
parliament,  it  clearly  would  have  no  constitutional  or  legal  right 
to  pass  an  ordinance  at  all.  Such  an  assemblage  would  not 
constitute,  in  a  political  sense,  The  People.  The  people  of  a 
State  is  the  political  body  —  the  corporate  unit  —  in  which  are 
vested,  as  we  have  seen,  the  ultimate  powers  of  sovereignty ; 
not  its  inhabitants  or  population,  considered  as  individuals.  It 
is  never  to  be  forgotten,  that  the  individuals,  constituting  a  State, 
have,  as  such,  no  political,  but  only  civil,  rights.  Except  as  an 
organized  body,  that  is,  except  when  acting  by  its  recognized 
organs,  the  entire  population  of  a  State  already  constituted, 
were  it  assembled  on  some  vast  plain,  could  not  constitutionally 
pass  a  law  or  try  an  offender. 

§  238.  If,  on  the  other  hand,  by  the  term  "  people,"  be  meant 
that  part  of  the  population  of  a  State,  in  whom  is  vested,  by 
the  Constitution,  the  exercise  of  sovereign  rights,  the  electors, 
the  doctrine,  that  they  have  "  the  right  to  change,  alter,  or  abol 
ish  their  government,  in  such  manner  as  they  please,"  is  absurd 
and  ridiculous — I  mean,  as  a  legal  or  constitutional  right,  or, 
as  Mr.  Hallett  says,  as  a  "  right,  not  of  force,  but  of  sovereignty." 
They  have  a  right,  unquestionably,  "  to  change,  alter,  or  abolish 
their  government,"  in  the  mode  provided  in  the  charter  deter 
mining  their  powers,  the  Constitution,  or,  when  that  is  silent, 
in  such  a  mode  as  shall  be  conformable  to  the  customary  law 
of  the  land,  and  to  the  general  principles  of  a  republican  repre 
sentative  system.  By  both  these,  as  well  as  by  the  express  pro 
visions  of  such  Constitutions  as  are  not  silent  on  the  subject, 
movements  of  the  people,  with  a  view  "  to  change,  alter,  or 
abolish  their  government,"  are  never  initiated  but  by  the  legis 
lative  authority  of  the  State.  Why  this  should  be  so,  is  shown 
by  Mr.  Webster  in  that  part  of  his  argument  in  which  are  ex 
hibited  the  practical  requisites  to  the  authenticity  of  a  vote.1 
If  there  is  anywhere,  in-  our  political  system,  then,  a  power  to 
change,  alter,  or  abolish  the  existing  government,  as  a  legal 
right,  it  must  reside  in  some  branch  of  that  government,  by  vir 
tue  of  authority  given  in  the  Constitution  ;  or,  where  there  is  no 
express  authority  given,  in  some  body  called  for  that  purpose 
by  the  rightful  law-making  power  of  the  State. 

l  §  234,  ante. 


OBSERVATIONS   UPON  MB.    HALLETT'S   ARGUMENT.  233 

§  239.  Again  :  The  argument  of  Mr.  Hallett  in  support  of  the 
proposition,  that  the  right  of  the  people  to  change,  alter,  or  abol 
ish  their  government,  in  such  manner  and  at  such  time  as  they 
may  please,  is  a  right,  not  of  force,  but  of  sovereignty,  consists 
of  two  branches  —  a  negative  branch,  and  an  affirmative  branch. 

The  negative  branch  of  the  argument  is,  that  the  right  cannot 
be  a  mere  right  of  force  or  of  revolution,  because  the  Consti 
tution  of  the  United  States  nowhere  recognizes  the  right  of 
revolution,  in  the  common  and  European  sense  of  the  term,  so 
far  as  the  States  are  concerned ;  but  that,  inasmuch  as  revolu 
tion  by  force  involves  insurrection  and  rebellion,  which  consti 
tute  "  domestic  violence,"  against  which  Congress  is  bound  by 
that  Constitution  to  guarantee  the  States,  it  can  never  be  resorted 
to  within  the  limits  of  the  Constitution,  while  a  State  remains 
in  the  Union. 

The  facts  stated  are  perfectly  true,  but  the  inference  drawn 
from  them  is  unwarranted.  Revolution  can  never  be  resorted 
to  under  the  Federal  Constitution,  or  under  any  other  Constitu 
tion,  legally ;  but,  when  the  evils  under  which  a  commonwealth 
languishes,  become  so  great  as  to  make  revolution,  including 
insurrection  and  rebellion,  less  intolerable  than  an  endurance  of 
those  evils,  it  will  be  justifiable,  although  the  Federal  relations  of 
that  commonwealth  may  be  such  as  to  array  against  her  forces 
vastly  greater  than  they  would  be  were  she  and  the  other  States 
independent  and  isolated  communities.  The  right  of  revolution 
stands  not  upon  the  letter  of  any  law,  but  upon  the  necessity 
of  self-preservation,  and  is  just  as  perfect  in  the  single  man,  or 
in  the  petty  State,  as  in  the  most  numerous  and  powerful  em 
pire  in  the  world.  This  right,  the  founders  of  our  system  were 
careful  to  preserve,  not  as  a  right  under,  but,  when  necessity 
demanded  its  exercise,  over  our  Constitutions,  State  and  Federal. 

$  240.  The  affirmative  branch  of  the  argument  is,  that  the  right 
asserted  must  be  a  right  of  sovereignty  and  not  of  force,  because 
it  is  specifically  guaranteed  in  the  Declaration  of  Independence 
and  in  the  Bills  of  Rights  of  nearly  all  our  State  Constitutions. 

To  determine  whether  this  inference  from  facts  which  cannot 
be  denied  is  just  or  not,  it  is  necessary  to  examine  critically  the 
documents  indicated,  as  well  as  the  historical  circumstances 
attending  their  inception. 

Now  these  documents  are  of  three  kinds.     The  first  kind  con- 


234  OBSERVATIONS   UPON   MR.    HALLETT's   ARGUMENT. 

sists  of  such  as  assert  the  right  clearly  and  unmistakably  as  a 
right  of  revolution. 

Thus,  the  Declaration  of  Independence  affirms,  "  that  when 
ever  any  form  of  government  becomes  destructive  "  of  the  ends 
of  government,  "  it  is  the  right  of  the  people  to  alter  or  abolish 
it,  and  to  institute  a  new  government,  laying  its  foundation  on 
such  principles,  and  organizing  its  powers  in  such  form  as  to 
them  shall  seem  most  likely  to  effect  their  safety  and  happiness." 

Not  only  so,  but  it  classes  this  affirmation  among  the  self- 
evident  truths :  "  We  hold  these  truths  to  be  self-evident." 

Now,  no  truth  can  be  self-evident,  which  becomes  evident 
only  under  particular  conditions,  as  when  it  is  deducible  only 
from  the  construction  of  legal  instruments,  or  from  the  provisions 
of  some  positive  code.  It  must  be  a  truth  independently  of  such 
conditions,  as  would  be  indispensable  to  give  it  rank  as  a  legal 
truth.  If  the  truth  in  question  is  a  self-evident  truth,  it  is  one 
which  would  obtain  equally  whether  asserted  in  the  Constitution 
and  laws  or  not. 

Now,  that  a  people,  organized  under  a  Constitution,  which 
itself  provides  a  particular  mode  for  its  own  amendment,  have  a 
legal  right  to  alter  or  abolish  it  whenever  and  however  they 
please,  is  not  a  self-evident  truth,  and  could  never  have  been 
claimed  to  be  such  by  any  body  of  sane  men. 

Moreover,  the  circumstances,  under  which  the  Declaration  of 
Independence  was  promulgated,  and  the  clear  import  of  its  terms, 
indicate,  that  it  was  the  right  of  revolution  to  which  its  authors 
referred.  That  instrument  was  the  manifesto  by  which  they 
declared  that  to  be  a  revolution,  which  hitherto  had  been  but  a 
mere  insurrection.  Its  language  was  that  of  justification  for 
acts  tending  to  the  permanent  disruption  of  the  empire.  "  Pru 
dence,  indeed,  will  dictate,"  its  authors  say,  "  that  governments 
long  established  should  not  be  changed  for  light  and  transient 
causes ;  and  accordingly  all  experience  hath  shown,  that  man 
kind  are  more  disposed  to  suffer,  while  evils  are  sufferable,  than 
to  right  themselves,  by  abolishing  the  forms  to  which  they  are 
accustomed.  But  when  a  long  train  of  abuses  and  usurpations, 
pursuing  invariably  the  same  object,  evinces  a  design  to  reduce 
them  under  an  absolute  despotism,  it  is  their  right,  it  is  their 
duty,  to  throw  off  such  government,  and  to  provide  new  guards  for 
their  future  security? ' 


OBSERVATIONS  UPON  MB.    HALLETl'S   ARGUMENT.  235 

Here,  certainly,  our  fathers  were  not  claiming,  as  guaranteed 
or  existing  by  the  laws  of  England,  a  right  to  disrupt  the  British 
empire,  but  a  right  older  than  those  laws,  the  right  of  revolution. 

§  241.  The  second  class  of  documents  consists  of  the  Bills  of 
Rights  of  a  large  number  of  our  Constitutions,  containing  broad 
general  assertions  of  the  right  of  a  people  to  alter  or  abolish 
their  form  of  government,  at  any  time,  and  in  such  manner  as  they 
may  deem  expedient.  The  peculiarity  of  these  documents  is, 
that  they  seem  to  assert  the  right  in  question  as  a  legal  right ; 
at  least,  they  furnish  a  plausible  argument  for  those  who  are 
willing  to  have  it  believed  that  the  right  is  a  legal  one;  when,  in 
fact,  it  is  a  revolutionary  right.  The  framers  of  those  Constitu 
tions  generally  inserted  in  them  provisions  for  their  own  amend 
ment.  Had  nothing  further  been  said,  it  might  have  been  in 
ferred,  that  no  other  mode  of  securing  needed  changes  was  under 
any  circumstances  to  be  pursued,  but  that  prescribed  in  those 
instruments.  Such,  however,  was  not  the  intention  of  their 
framers.  They  meant  to  leave  to  the  people,  besides,  the  great 
right  of  revolution,  formally  and  solemnly  asserted  in  the  Dec 
laration  of  Independence.  They,  therefore,  affirmed  it  to  be  a 
right  of  the  people  to  alter  or  abolish  their  Constitutions,  in  any 
manner  whatever ;  that  is,  first,  legally,  in  the  mode  pointed  out 
in  their  Constitutions,  or  by  the  customary  law  of  the  land  ;  and 
secondly,  illegally,  that  is,  for  sufficient  causes,  by  revolutionary 
force. 

Thus,  the  Bill  of  Rights  of  Mississippi  contains  a  provision, 
which  is  a  type  of  that  found  in  a  great  number  of  our  State 
Constitutions,  couched  in  the  following  terms  :  "  We  declare, 
....  that  all  power  is  inherent  in  the  people,  and  all  govern 
ments  are  founded  on  their  authority,  and  instituted  for  their 
safety,  peace  and  happiness.  For  the  advancement  of  these  ends, 
they  have,  at  all  times,  an  unalienable  and  indefeasible  right  to 
aher,  reform,  or  abolish  their  government,  in  such  manner  as  they 
may  think  proper"  1 

1  Substantially  the  same  is  the  declaration  found  in  each  of  the  following 
Constitutions  :  —  Those  of  Massachusetts,  1 780 ;  Vermont,  1 786  ;  Connecticut, 
1818;  Maine  and  Alabama,  1819;  Delaware,  1831;  Mississippi,  1832;  Ten 
nessee,  1834;  Arkansas,  1836;  Pennsylvania,  1838;  Florida,  1839;  New  Jer 
sey,  1844;  Texas,  1845;  Missouri,  1846;  California,  1849;  Kentucky,  1850; 
Ohio,  1851 ;  and  Iowa,  Oregon,  and  Minnesota,  1857.  Where  revisions  have 
been  made  of  these  Constitutions,  the  provision  is  commonly  inserted  therein 
without  modification. 


236  OBSERVATIONS  UPON  MB.   HALLETT'S  ARGUMENT. 

But,  let  it  be  noted,  that  these  Constitutions  do  not  say,  that 
every  mode  of  exercising  this  right  will  be  a  legal  mode.  What 
they  do  declare  is,  in  effect,  this :  The  people  cannot  bind  them 
selves  or  be  bound,  irretrievably,  to  continue  a  form  of  govern 
ment,  when  it  has  ceased  to  answer  the  ends  of  its  establishment. 
They  may  change  it  or  set  it  aside  in  any  way  whatever  that 
circumstances  may  make  necessary.  They  may  do  it  by  force 
even,  and,  of  course,  by  the  mild  and  regular  procedure  laid  down 
in  their  Constitution  —  calling  things  always,  however,  by  their 
right  names  ;  when  doing  it  in  the  latter  mode,  designating  it  as 
legal  or  constitutional,  but  when  in  the  former,  as  revolutionary. 

§  242.  That  the  view  I  have  taken  of  the  two  classes  of  docu 
ments  specified  is  the  correct  one,  is  rendered  more  probable 
when  we  look  into  the  state  of  opinion  in  England  and  America, 
previous  to  our  Revolution,  in  reference  to  the  duties  of  a  people 
towards  their  rulers,  embodied,  in  conformity  to  the  views  of 
the  latter,  in  the  famous  doctrine  of  "  Passive  Obedience "  or 
"  Non-Resistance." 

The  substance  of  this  doctrine  was,  that  governments  are  of 
divine  appointment,  and  hence  that  any  resistance  whatever  to 
kingly  authority  (for  it  was  to  bolster  up  the  institution  of  mon 
archy  that  it  was  invented),  even  when  that  authority  is  ex 
erting  itself  in  palpable  violation  of  the  laws,  is  sinful  in  the 
sight  of  God.  This  doctrine,  originating  in  the  Middle  Ages, 
was  held  by  the  Tory  party  in  England  during  the  entire  exist 
ence  of  the  Stuart  dynasty,  their  opponents,  the  Whigs,  on  the 
contrary,  maintaining  the  essential  principles  of  liberty,  the  inde 
pendence  of  Parliament  and  of  the  people,  and  the  lawfulness  of 
resistance  to  a  king  who  violated  the  laws.  After  the  fall  of  the 
Stuarts,  the  doctrine  was  generally  discredited,  but  in  the  alterna 
tions  of  parties  which  ensued,  it  was  frequently  revived,  mainly 
through  the  influence  of  the  Church,  which  repaid  the  favors 
lavished  upon  her  by  the  crown,  by  inculcating  doctrines  tending 
to  make  the  latter  absolute  master  of  the  public  liberties.  Dur 
ing  the  long  period  of  Whig  ascendency,  however,  extending 
with  few  intermissions  from  the  reign  of  William  III.  to  that 
of  George  III.,  the  slavish  dogma  of  Passive  Obedience  became 
nearly  extinct,  being  subjected  to  persecution  by  the  party  in 
power.  In  the  reign  of  Queen  Anne,  Dr.  Sacheverell  was 
impeached  for  maintaining  it  in  a  sermon  preached  before  the 


OBSERVATIONS   UPON   MR.    HALLETT'S   ARGUMENT.  237 

Commons.1  At  the  accession  of  George  III.,  however,  there 
came  a  great  Tory  reaction,  and  the  doctrine  of  Non-Resist 
ance  was  again  preached  by  all  of  that  numerous  party  which 
thought  what  was  pleasing  to  the  ruling  monarch.  At  the  time 
our  Revolution  broke  out  the  minds  of  men  everywhere  through 
out  the  British  empire  were  oppressed  by  scruples,  resting  on 
the  teachings  of  revered  names  in  the  Church,  as  to  the  sinful- 
ness  of  resistance  to  the  usurpations  of  the  King,  even  when  he 
was  evidently  laying  violent  hands  on  the  very  temple  of  free 
dom  itself.2 

§  243.  Among  the  most  difficult  tasks  of  the  men  of  our  Rev 
olution,  therefore,  was  to  disabuse  the  public  mind  of  the  heresy 
of  Passive  Obedience  or  Non-Resistance.  The  discussions  pre 
ceding  the  revolt  are  filled  with  arguments  tending  to  make  it 
clear  to  tender  consciences  in  the  colonies,  that  in  entering  upon 
a  course  of  opposition  to  King  and  Parliament,  they  were  not 
guilty  necessarily  of  a  sin  or  a  crime.3  In  this  great  work,  natu 
rally,  the  clergy  of  the  period  bore  a  conspicuous  part.  It  was 
left  to  no  particular  class,  however,  to  clear  up  a  doubt,  which 
strikes  the  mind  in  our  day  as  absurd.  It  was  preached  down 
in  the  pulpits,  argued  against  in  the  halls  of  legislation  and  upon 
the  stump,  and,  to  make  sure  that  it  should  be  deprived  of  all 
further  power  to  mislead,  it  was  nailed  to  the  wall  for  public 
reprobation  in  the  great  manifesto  of  our  Revolution,  and  in  our 
Bills  of  Rights. 

When  the  fathers,  therefore,  in  the  Declaration  of  Indepen 
dence,  solemnly  affirmed  the  right  of  a  people  to  alter  or  abolish 
their  government,  whenever  it  should  have  become  destructive 
of  its  proper  ends,  "  laying  its  foundation  on  such  principles,  and 
organizing  its  powers  in  such  form,  as  to  them  should  seem 

1  In  his  answer  to  the  Articles  of  Impeachment,  the  Doctor  said :  —  "  The  said 
Henry  Sacheverell,  upon  the  strictest  search  into  his  said  sermon  preached  at 
St.  Paul's,  doth  not  find  that  he  hath  given  any  the  least  colourable  pretence  for 
the  accusation  exhibited  against  him  in  this  first  article,  but  barely  by  his  assert 
ing  the  utter  illegality  of  Resistance  to  the  Supreme  power  upon  any  pretence 
whatsoever ;  for  which  assertion,  he  humbly  conceives  he  hath  the  authority  of 
the  Church  of  England."     15  How.  St.  Trials,  p.  42. 

2  On  the  whole  subject  of  Non-Resistance,  see  Macaulay,  Hist.  Eng.,  Vol.  I. 
pp.  37,  38,  324-326;   May,  Const.  Hist.  Eng;.,  Vol.  I.  pp.  15-104;    Hallam,* 
Const.  Hist.  Eng.,  pp.  237,  238,  491,  493. 

3  See  Bancroft,  Hist.  U.  £,  Vol.  V.,  pp.  195,  206,  288,  289,  324,  325, 


238  OBSERVATIONS  UPON   ME.    HALLETl's   ARGUMENT. 

most  likely  to  effect  their  safety  and  happiness,"  they  were  fight 
ing  the  old  dragon  of  Passive  Obedience,  now  long  since  dead ; 
to  our  age,  the  shadow  of  a  peril  long  past  and  apparently  so 
baseless,  that  we  can  scarcely  realize  that  it  ever  existed.  By 
this  declaration,  in  other  words,  the  statesmen  of  the  Revolution 
meant  merely  to  deny,  that  the  people  could  not,  without  mortal 
sin,  arrest  their  rulers  in  a  career  of  usurpation,  even  if  their  op 
position  should  terminate  in  blood ;  and  to  affirm,  that  govern 
ment  being  instituted  for  the  good  of  the  people,  and  not  the 
people  created  as  slaves  to  the  government,  obedience  was  due 
from  the  one  to  the  other  only  so  long  as  it  was  not  destructive 
of  the  ends  of  government. 

The  same  motives  which  led  to  the  insertion  of  the  clause  in 
the  Declaration  of  Independence,  induced  the  framers  of  our 
Constitutions  to  place  it  in  the  Bills  of  Rights  prefacing  those 
instruments. 

§  244.  A  confirmation  of  this  construction  of  this  clause  in 
our  Constitutions  is  found  in  the  context  to  it  in  some  of  those 
instruments.  Thus,  the  Maryland  Constitution  of  1776,  the  New 
Hampshire  Constitution  of  1792,  and  the  Tennessee  Constitu 
tion  of  1834,  contained  immediately  after  the  clause  in  question 
the  following  declaration :  — 

"  The  doctrine  of  non-resistance  against  arbitrary  power  and 
oppression,  is  absurd,  slavish,  and  destructive  of  the  good  and 
happiness  of  mankind" 

§  245.  It  remains  now  to  notice  the  third  and  last  kind  of 
documents  referred  to,  namely,  Constitutions  containing  clauses 
in  some  respects  resembling  those  commented  upon  above,  but 
of  which  the  legal  effect  is  totally  different.  These  are  the  Con 
stitutions  of  Virginia,  Rhode  Island,  and  Maryland. 

In  the  Bills  of  Rights  of  the  various  Virginia  Constitutions 
is  found  the  following  declaration :  — 

"  That  government  is,  or  ought  to  be,  instituted  for  the  com 
mon  benefit,  protection,  and  security  of  the  people,  nation,  or 
community.  Of  all  the  various  modes  and  forms  of  govern 
ment,  that  is  best  which  is  capable  of  producing  the  greatest 
degree  of  happiness  and  safety,  and  is  most  effectually  secured 
1  against  the  danger  of  maladministration ;  and  that  when  any 
government  shall  be  found  inadequate  or  contrary  to  these 
purposes,  a  majority  of  the  community  hath  an  indubitable,  in- 


OBSERVATIONS  UPON   MR.    HALLETT's   ARGUMENT.  239 

alienable,  and  indefeasible  right  to  reform,  alter,  or  abolish  it, 
in  such  manner  as  shall  be  judged  most  conducive  to  the  public 
weal." 

Now,  the  authors  of  this  declaration  evidently  intended  by  it 
to  assert  for  "  a  majority  of  the  community "  either  a  legal 
or  a  revolutionary  right.  If  it  was  the  latter,  why  confine  to  a 
majority  a  right  which  belongs  to  one  man  or  a  hundred  men 
as  perfectly  as  to  a  million,  or  to  a  majority  of  all  the  citizens  ? 

Again :  unless  by  the  term  majority  be  meant  that  which  is 
greater,  not  in  numbers,  but  in  force,  the  clause,  as  declaratory 
of  a  revolutionary  right,  is  absurd.  Nature  knows  no  majority 
but  that  of  force.  The  majorities,  of  which  we  hear  so  much, 
of  the  male  adult  citizens  invested  with  the  suffrage,  are  matters 
of  positive  regulation.  Does  Nature  determine  the  age  at  which 
a  citizen  becomes  an  adult  citizen?  or  does  she  confine  the 
exercise  of  the  suffrage  to  males  only  ? 

As,  however,  that  use  of  the  word  majority  is  unprecedented, 
it  is  clear  that  the  words  referred  to  were  intended  to  assert  a 
legal  right.  But  if  the  right  belongs  to  a  majority  to  alter  or 
abolish  the  existing  form  of  government  as  a  legal  right,  it  must 
be  to  a  majority  of  the  electors,  acting  in  pursuance  of  some 
law  passed  according  to  the  forms  of  the  Constitution.  No 
other  majority  and  no  other  people  are  known  to  the  laws,  nor 
could  the  action  of  any  other  majority  or  any  other  people  be 
denominated  legal.  I  conclude,  therefore,  that  the  clause  refers 
merely  to  the  ordinary  and  accepted  modes  of  amending  or 
repealing  Constitutions,  leaving  a  choice  of  them  to  the  existing 
government. 

That  the  words  referred  to  have  been  generally  considered 
objectionable,  as  liable  to  misconstruction,  may  be  inferred  from 
the  fact  that,  although  a  great  number  of  the  Constitutions 
formed  in  other  States  have  copied  the  Virginia  declaration,  not 
one  of  them  has  ever  retained  those  words.  One  instance  will 
suffice.  The  Vermont  Bill  of  Rights  declares  "that  the  com 
munity  "  —  not  "  a  majority  of  the  community,"  as  in  that  of 
Virginia  —  "  hath  an  indubitable,  inalienable,  and  indefeasible 
right,"  &C.1 

1  See  also  the  Constitutions  of  Connecticut,  1818;  Alabama,  1819;  Missis 
sippi,  1832 ;  Tennessee,  1834  ;  Arkansas,  1836  ;  Pennsylvania,  1838 ;  Florida, 
1839;  Texas,  1845  ;  Kentucky,  1850;  and  Oregon,  1857,  — in  which  the 
omission  is  observable. 


240  OBSERVATIONS   UPON   MR.    HALLETT'S   ARGUMENT. 

§  246.  In  the  Rhode  Island  Constitution,  framed  in  1842,  is 
found  the  following  declaration  :  — 

"  In  the  words  of  the  Father  of  his  Country,  we  declare,  that 
'  the  basis  of  our  political  systems  is  the  right  of  the  people  to 
make  and  alter  their  Constitutions  of  government ;  but  that  the 
Constitution  which  at  any  time  exists,  till  changed  by  an  explicit 
and  authentic  act  of  the  whole  people,  is  sacredly  obligatory  upon 
all.' " 

So,  also,  to  a  similar  effect,  is  a  clause  in  the  Maryland  Con 
stitution  of  1851,  which  declares,  — 

"  That  all  government  of  right  originates  from  the  people,  is 
founded  in  compact  only,  and  instituted  solely  for  the  good  of 
the  whole ;  and  they  have  at  all  times,  according"  to  the  mode  pre 
scribed  in  this  Constitution,  the  unalienable  right  to  alter,  reform, 
or  abolish  their  form  of  government,  in  such  manner  as  they  may 
deem  expedient" 

In  these  two  Constitutions  there  is  no  declaration  of  the  right 
of  revolution,  those  clauses  which  are  usually  so  worded  as  to 
assert  that  right  being,  in  these,  confined  by  restrictive  clauses,  so 
as  to  make  the  right  involved  a  mere  legal  right  to  alter  or  abol 
ish  forms  of  government  in  modes  appointed  by  law. 

It  is  obvious  —  recurring  to  the  clause  in  the  Rhode  Island 
Constitution  —  that,  if  a  form  of  government  remains  unaltered 
until  "  changed  by  an  explicit  and  authentic  act  of  the  whole 
people,"  it  will  remain  so  forever,  unless  the  modes  and  instru 
mentalities  employed  to  effect  the  change  are  appointed  and 
regulated  by  positive  law.  The  whole  people  cannot  meet  in 
Convention.  No  declaration  of  their  will  can  be  explicit,  no 
representation  of  them  by  a  few  can  be  authentic,  unless  made 
and  authorized  through  some  organ  empowered  to  utter  their 
voice. 

In  the  Maryland  declaration  it  is  difficult  to  give  any  effect  at 
all  to  the  concluding  words,  "  in  such  manner  as  they  may  deem 
expedient."  Referring  to  the  debates  preceding  the  adoption  of 
the  section,  it  is  apparent  that  the  effect  of  inserting  the  clause 
restricting  alterations  of  the  Constitution  "to  the  mode  pre 
scribed  in  this  Constitution,"  was  not  well  considered.  Striking 
out  from  the  clause,  as  it  now  reads,  the  restrictive  words, 
it  conforms  closely  to  those  inserted  in  so  many  of  our  Consti 
tutions  of  which  I  have  before  spoken.  As  Maryland  had  suf- 


SECESSION    CONVENTIONS.  241 

fered  from  revolutionary  attempts  to  alter  her  Constitution,  her 
Convention  desired  to  narrow  within  safe  limits  that  important 
right.  It  therefore  inserted  the  restrictive  words,  but  neglected 
to  strike  out  those  which  are  significant  only  as  declaratory  of 
the  old  revolutionary  right,  thus  seeming  to  negative  its  own 
intention.  The  only  construction  that  can  be  given  to  the  sec 
tion  which  will  allow  all  of  its  parts  to  stand,  is  to  refer  the 
clause,  "  in  such  manner  as  they  may  deem  expedient,"  to  the 
words  "  alter  "  and  "  reform,"  and  not  to  the  nearer  word  "  abol 
ish."  It  would  then  mean  that  the  people  have  an  inalienable 
right,  in  the  mode  prescribed  in  the  Constitution,  to  alter  or 
reform  the  same  in  such  manner  as  they  may  deem  expedient  — 
that  is,  make  such  changes  therein  as  they  please  —  or  the  right 
wholly  to  abolish  it.  Thus,  by  a  sacrifice  of  grammatical  accu 
racy,  the  work  of  the  Convention  is  redeemed  from  self-contra 
diction. 

§  247.  (c).  The  last  variety  of  Conventions  which  I  shall 
mention  consists  of  those  exceptional  bodies  by  which  were 
engineered,  first,  the  so-called  secession  of  certain  slave  States 
from  our  Union  in  1860  and  1861 ;  and  secondly,  the  reconstruc 
tion  of  those  States  preparatory  to  a  resumption  of  their  normal 
relations  to  the  Union  in  1864,  1865,  and  1866. 

The  States  concerned,  in  the  order  in  which  their  ordinances 
of  secession  were  passed,  were  South  Carolina,  Mississippi, 
Florida,  Alabama,  Georgia,  Louisiana,  Texas,  Arkansas,  Vir 
ginia,  Tennessee,  and  North  Carolina — the  ordinance  of  the 
first  having  been  passed  in  December,  1860,  and  that  of  the  last 
in  May,  1861. 

It  is  not  my  purpose  to  enter  fully  upon  the  history  of  the 
Secession  Conventions,  since  the  view  I  take  of  them  renders 
only  a  few  of  the  leading  facts  relating  to  the  call  of  these 
bodies  important. 

The  Secession  Conventions  were  called  avowedly  to  effect, 
by  revolutionary  means,  the  disruption  of  the  American  Union, 
established  by  the  war  of  Independence,  and  confirmed  by  the 
Federal  Constitution  of  1789.  The  election  of  Mr.  Lincoln 
upon  a  platform  deemed  menacing  to  the  interests  of  those 
States,  was  the  wrong,  to  redress  which  the  rupture  of  their 
constitutional  relations  to  their  sister  States  was  attempted.  By 
concert  among  the  leading  men  of  the  South,  and  perhaps  in 
16 


242  SECESSION   CONVENTIONS. 

pursuance  of  a  long  cherished  purpose,  Conventions  were  called 
in  every  State  but  one  above  named,  as  soon  after  the  announce 
ment  of  Mr.  Lincoln's  election  as  the  popular  attachment  to  the 
existing  government  could  be  made  to  give  way  to  a  desire  for 
Southern  Independence.  Tennessee  called  no  Convention,  but 
as  her  legislature  assumed  to  act  as  a  Convention,  and  in  that 
capacity  passed  a  pretended  Ordinance  of  Secession,  I  have  reck 
oned  that  body  amongst  the  Secession  Conventions. 

§  248.  The  mode  of  calling  these  Conventions  was  as  follows : 
The  legislatures  of  many  of  the  States  meeting,  by  law,  not  far 
from  the  time  of  the  Presidential  election,  the  friends  of  seces 
sion  easily  secured  the  passage  of  Acts  calling  Conventions  in 
those  States.  Where  those  bodies  were  not  soon  to  assemble,  it 
became  necessary  to  prevail  upon  the  governors  of  the  States 
to  call  extra  sessions  of  their  legislatures  —  a  thing  easily  ac 
complished,  as  most  of  those  officers  were  ardent  champions  of 
the  secession  cause,  and  perhaps,  for  that  reason,  had  been 
chosen  to  fill  their  respective  places.  When  assembled,  these 
bodies  found  little  difficulty  in  falling  in  with  the  current  and 
calling  Conventions,  generally  declaring  the  object  of  them  to 
be  to  consider  the  u  relations  between  the  government  of  the 
United  States,  the  people  and  governments  of  the  different 
States,  and  the  government  and  people  "  of  the  State  concerned, 
"  and  to  adopt  such  measures  for  vindicating  the  sovereignty  of 
the  State  and  the  protection  of  its  institutions "  as  should 
appear  to  be  demanded.1  In  most  of  the  States,  the  question 
of  calling  those  Conventions  was  not  submitted  to  the  people, 
though  in  Tennessee  and  North  Carolina  it  was  so  submitted, 
and  was  voted  down,  the  electors  in  the  latter  State,  neverthe 
less,  at  the  same  time,  with  a  singular  inconsistency,  electing 
delegates  as  required,  but  choosing  such  as  favored  the  Union. 
The  Convention  met,  and  at  its  first  session  refused  to  vote  an 
Ordinance  of  Secession  ;  but,  after  the  bombardment  of  Fort 
Sumter,  the  cause  of  the  Union  appearing  hopeless,  the  same 
body  was  reassembled,  and  voted  the  State  out  of  the  Union 
unanimously ! 

In  Texas,  the  Governor,  Houston,  refused  to  call  the  legisla- 

l  Act  calling  the  Missouri  Convention  of  1861,  sec.  5.  That  Missouri  did  not 
secede  was  probably  no  fault  of  the  pro-slavery  legislature  which  passed  this 
Act. 


CHARACTER   OF  THE   SECESSION   CONVENTIONS.  243 

ture  together,  but  some  sixty  of  the  conspirators  against  the 
Union,  signed  a  document  convening  that  body,  and  a  Conven 
tion  was  thereupon  called,  and  an  Ordinance  of  Secession  passed. 
In  Alabama  the  Convention  was  called  by  Governor  Moore,  in 
pursuance  of  an  Act  of  the  legislature,  passed  in  anticipation  of 
the  election  of  a  Republican  to  the  office  of  President  of  the 
United  States,  authorizing  and  requiring  him  on  the  happening 
of  that  contingency  to  call  a  Convention,  to  take  such  steps  as 
should  protect  the  power  and  interests  of  the  State. 

In  none  of  these  States  were  the  Ordinances  of  Secession  sub 
mitted  to  the  people,  save  in  Texas,  Tennessee,  and  Virginia, 
and  in  those  cases  they  were  submitted  under  systems  of  fraud 
and  violence  ingeniously  contrived  to  insure,  as  they  did  insure, 
the  adoption  of  the  ordinances,  at  all  events. 

§  249.  Admitting,  however,  that  the  Secession  Conventions 
were  all  called  in  pursuance  of  the  legislative  authority  of  their 
respective  States,  they  are  nevertheless  to  be  set  down  as  Revo 
lutionary  Conventions  for  two  reasons  :  — 

1.  The  legislatures  calling  them  transcended  their  constitu 
tional  authority  in  so  doing.     The   Constitution  of  the  United 
States  was  a  part  of  the   Constitution  of  each  of  those  States, 
and  all  the   State  officers,  legislative,  executive,   and  judicial, 
were  bound  by  oath  to  support  it.     In  taking  steps  to  overturn 
that  Constitution  and  to  disrupt  the  Union,  every  member  of  the 
State  legislatures  calling  Conventions  with  the  ulterior  purpose 
of  passing   secession    ordinances   in    any  event,   was   entering 
upon  a  course  of  revolution,  and  became  guilty  of  perjury  and 
treason. 

2.  The  Secession  Conventions  did  not  confine  themselves  to 
the  recommending,  or  even  to  the  enacting  of  changes  in  their 
several    State    Constitutions,  which,  as  we    have   seen,   is  the 
utmost  limit  of  the  powers  of  Constitutional   Conventions;  but 
they  severally  assumed  general  powers   of  administration   and 
government.     Many,  and  perhaps  all  of  them,  overhauled  their 
State  Constitutions  ;    but  they  did   more,  —  they  appropriated 
moneys  out  of  the  State  treasuries,  raised  troops,  and  appointed 
officers,  with  a  view  to  an  armed  conflict  with  the  United  States, 
should  the  latter  dispute  their  right  to  secede.     When  the  con 
vention  of  delegates  which  met  at  Montgomery,  Alabama,  to 
frame  a  Constitution  for  the  Confederacy  of  the  seceding  States, 


244  RECONSTRUCTION    CONVENTIONS. 

submitted  its  project  to  the  States  for  ratification,  the  State 
Conventions  took  it  upon  themselves  to  ratify  that  instrument, 
not  only  without  express  instructions,  but  in  evident  violation 
of  those  which  were  implied  in  the  Acts  calling  them  together. 

Like  the  Provincial  Conventions,  therefore,  which  engineered 
our  separation  from  Great  Britain,  the  Secession  Conventions 
were  simply  provisional  organizations  resting  upon  a  revolution 
ary  basis,  and  exercising  such  powers  as  were  deemed  requisite 
by  the  insurgent  populations  to  insure  the  success  of  the  revolu 
tion  upon  which  they  had  entered.  In  one  respect,  however, 
they  differed  from  the  Conventions  of  1776.  The  existing  estab-  § 
lishments,  the  State  organizations,  were,  in  1861,  all  conducted 
in  the  interest  of  the  rebellion  ;  it  was,  therefore,  unnecessary  for 
the  Conventions,  running  a  parallel  course  with  the  various 
departments  of  the  State  governments,  to  assume  so  wide  gov 
ernmental  powers  as  did  the  Provincial  Conventions  in  1776,  to 
which  the  colonial  governors  and  Assemblies  were  generally 
hostile. 

§  250.  The  Secession  Conventions  being  thus  purely  Revolu 
tionary  Conventions,  as  defined  in  the  first  chapter,  they  must 
depend  for  their  justification  solely  upon  the  success  of  the  revo 
lution  which  they  originated.  That  revolution,  it  is  now  a 
matter  of  history,  did  not  succeed  in  any  one  of  the  eleven 
States.  The  armies  engaged  in  the  attempt  to  wrest  those 
States  from  the  Union  were  overthrown,  having  succeeded  only 
in  dismantling  those  States,  and  placing  them  in  abnormal 
relations  to  the  Union.  Precisely  what  those  relations  were, 
at  the  moment  the  rebel  armies  surrendered,  it  is  not  easy  to  de 
termine;  nor,  perhaps,  is  it  necessary,  further  than  to  state,  that 
the  revolting  States  were  found  to  be  under  the  sway  of  certain 
so-called  governments,  how  formed  does  not  matter,  which  were 
alien  to  the  Union,  the  State  Constitutions,  under  which  the 
initial  steps  in  the  rebellion  had  been  taken,  having  been  sever 
ally  overthrown.  Such  governments  obviously  could  not  be 
recognized  by  the  Federal  authorities  as  existing  at  all,  for  any 
purpose. 

Here,  then,  were  brought  again  into  relations  of  practical  sub 
jection  to  the  Union,  certain  integral  populations,  which  had 
once  been  Constitutional  States,  but  which  having,  by  truancy 
from  constitutional  courses,  lost  something  necessary  to  that 


RECONSTRUCTION  CONVENTIONS.  245 

character,  were  such  no  longer  —  were,  indeed,  little  more  than 
"geographical  denominations;"  communities,  which,  although 
as  much  in  the  Union,  territorially,  as  ever,  were  properly  neither 
constitutional  States,  nor  constitutional  Territories,  but  States 
which  had,  sua  sponte^  for  purposes  of  ambition,  divested  them 
selves  of  their  constitutional  apparel,  and  donned  that  of  treason 
and  rebellion,  and  so  had  forfeited  their  prerogative  as  States  to 
participate  in  governing  the  Union,  and  been  relegated  to  a 
condition  analogous  to  that  of  Territories  —  a  condition  in  which 
they  belonged  to  the  Union,  but  had  rightfully  no  governing 
function  whatever,  local  or  general. 

§  251.  Standing  thus,  it  is  evident,  there  were  necessary  to 
lead  off  in  any  movement  with  a  view  to  the  rehabilitation  of 
such  States  in  their  normal  relations  to  the  Union,  Conventions 
to  provide  them  with  Constitutions.  This  was  universally  ad 
mitted,  but  how  to  call  those  Conventions,  was  a  question  upon 
which  there  were  wide  divergences  of  opinion. 

In  my  judgment,  there  were  but  four  possible  modes  of  calling 
such  Conventions. 

1.  The  inhabitants  of  the  rebel  States  might,  by  a  spontane 
ous    movement,   without   the   intervention    of   any   recognized 
authority  whatever,  have  called   Conventions  to  reconstruct  their 
governments.     This  course  would  have  required,  obviously,  the 
tacit  consent  of  Congress,  but,  as  explained  in  the  first  part  of 
this  chapter,1  it  would  have  been  liable  to  great  practical  objec 
tions,  and  would,  besides,  have  been  wholly  irregular,  not  to  say 
revolutionary. 

2.  The  second  course  was  for  the  so-called  legislatures  of  the 
seceded  States,  elected  under  the  rebel  regime,  to  initiate,  with 
the  consent  or  connivance  of  Congress,  the  movements  for  recon 
struction  in  their  respective  States.     This  course,  however,  was 
politically  impossible.     The  government  of  the  United   States 
could  not  recognize  the  rebel  legislatures,  as  possessed  of  any 
political  functions  whatever,  without,  by  implication,  admitting 
the  validity  of  the  act  of  secession.     If  those   bodies  were  to 
meet,  it  must  be  as  so  many  individuals  liable  to  the  penalties 
of  treason,  and  having  no  rights  which  the  government  of  the 
Union  was  bound  to  respect,  except  such  as  they  held  in  com 
mon  with  other  public  enemies. 

i  See  ante,  §§  114,  115. 


246  RECONSTRUCTION  CONVENTIONS. 

§  252.  3.  As  a  third  course,  the  Congress  of  the  United  States 
might  have  inaugurated  the  movement  toward  reconstruction 
by  calling  Conventions  in  the  lately  insurgent  States. 

Undoubtedly,  this  course  would  have  been  irregular,  since 
Congress  has  power  to  pass  enabling  Acts  only  for  Territories, 
strictly  so  called,  and  not  for  States.  It  is  true,  as  we  have 
seen,  that  the  rebel  communities,  on  the  surrender  of  the  Con 
federate  armies,  were  not  constitutional  States.  But  neither 
were  they  constitutional  Territories.  They  were  States  whose 
practical  relations  to  the  Federal  whole  were  in  a  state  of  dis 
ruption.  In  other  words,  they  were  quasi  States,  so  far  as  their 
historical  relations  to  the  Union  were  concerned,  but  quasi 
Territories,  in  relation  to  the  exercise  of  Federal  rights. 

Being  neither  States  nor  Territories,  but  communities  pre 
senting,  in  their  different  relations,  the  aspects  of  both,  Congress 
could  not  regularly  act  toward  them  as  though  they  were  either. 
It  could  not  permit  them  to  call,  nor  could  it  itself  regularly 
call  for  them,  Conventions  to  reconstruct  their  subverted  govern 
ments. 

4.  Finally,  the  requisite  nucleus  for  reconstruction  might  have 
been  provided  by  the  President  of  the  United  States,  acting  in 
his  capacity  of  Commander-in-Chief  of  the  national  armies,  en 
gaged  in  crushing  the  rebel  Confederacy. 

With  reference  to  this  mode,  however,  it  is  evident,  that  it 
would  have  been  legitimate  only  as  a  war  measure,  the  power 
of  the  President  to  act  in  the  manner  supposed,  being  simply  a 
war  power,  and  therefore  proper  only  whilst  the  war  should  last. 
On  the  coming  of  peace,  all  political  structures  built  up  by,  and 
under  the  shelter  of  the  military  arm  for  the  temporary  govern 
ment  of  the  conquered  districts,  would  melt  away,  save  as  the 
law-making  power  of  the  Union  should  recognize  and  confirm 
them.  They  would  not  have  been  legally  or  regularly  formed. 
Judged  from  a  constitutional  point  of  view,  they  would  have 
been  based  simply  on  the  will  of  the  commanding  general,  and, 
therefore,  have  been  akin  to  institutions  purely  revolutionary,  as 
founded  without  the  authority  of  law.  That  this  is  so,  becomes 
the  more  probable,  when  it  is  considered,  that  it  has  never,  in 
any  one  of  the  States  of  the  Union,  or  in  the  Union  itself,  been 
recognized  as  within  the  competence  of  the  executive  branch  of 
the  government  to  call  a  Convention  :  that  is,  of  the  executive, 


RECONSTRUCTION   CONVENTIONS.  247 

as  such.  Considered  as  the  commander  of  armies  in  the  field,  on 
the  other  hand,  and,  in  that  capacity,  called  upon  to  provide  for 
the  government  temporarily  of  the  territory  overrun,  because  the 
President  could  do  any  thing,  he  could  doubtless  call  a  Conven 
tion  to  frame  a  provisional  Constitution  ;  or,  should  he  prefer  to 
do  so,  could  himself,  in  general  orders,  establish  a  Constitution. 
But,  the  point  insisted  upon  is,  that  such  a  Convention  would 
lack  the  essential  requisites  of  legitimacy,  as  a  Constitutional 
Convention.  The  act  of  the  President  would  be  justifiable  only 
upon  the  ground  of  its  necessity,  and  hence  the  body  convened 
would  stand  on  the  same  footing  as  the  English  Convention, 
called  by  William  of  Orange  on  the  abdication  of  James  II., 
which  was  unquestionably  a  revolutionary  body. 

§  253.  These  four  modes  of  proceeding  being  all  liable  to  ob 
jections,  the  question  arises,  which,  on  the  whole,  was  prefer 
able  ? 

The  answer  is  —  that  mode  which,  beside  being  attended  by 
the  fewest  practical  evils,  was  most  conformable  to  established 
precedents  in  the  United  States,  in  times  of  peace  and  constitu 
tional  order. 

Tried  by  this  test,  it  is,  in  my  judgment,  beyond  question,  that 
the  third  mode,  that  by  the  direct  intervention  of  Congress,  was 
to  be  preferred. 

Congress  was  the  grand  Council  of  the  nation.  Its  interfer 
ence  in  the  business  of  reconstruction,  though  irregular,  would 
be  effected  by  some  formal  Act  or  Resolution,  in  which  could  be 
provided,  to  the  satisfaction  of  the  nation  at  large,  guarantees 
not  only  for  the  private  rights  of  the  citizens  of  the  States  con 
cerned,  but  for  the  public  liberties.  Besides,  in  one  aspect  of 
the  case,  there  would,  in  the  intervention  of  Congress,  be  an 
intrinsic  propriety,  sufficient  almost  to  stamp  the  act  as  consti 
tutionally  rightful  and  regular.  The  legislature  of  the  Union 
is,  as  we  have  seen,  as  to  Federal  relations,  the  legislature  of 
each  State.  As  the  rebel  States,  when  admitted  to  full  partici 
pation  in  the  government,  at  once  assume  a  governing  relation 
to  the  other  States,  co-members  with  them  of  the  same  Federal 
whole,  the  question  of  their  reconstruction,  as  a  practical  ques 
tion,  is  a  Federal  one,  and  ought  to  be  settled  by  Federal  author 
ity.  Of  all  the  departments  of  the  general  government,  Congress 
is  undoubtedly  the  one  to  which  can  be  most  safely  intrusted 


248  RECONSTRUCTION   CONVENTIONS. 

the  power  of  calling  the  Conventions  necessary  for  that  purpose. 
As,  in  such  a  case,  these  bodies  would  be  called  in  each  State 
by  that  legislature  which  had  supreme  jurisdiction  over  the 
Federal  relations  of  such  State,  the  departure  from  the  strictest 
constitutional  precedents  would  be  but  nominal. 

§  254.  The  mode  actually  adopted  was  the  fourth,  by  the 
intervention  of  the  President  of  the  United  States,  save  in  Vir 
ginia,  where  reconstruction  was  inaugurated  by  the  spontaneous 
action  of  the  loyal  citizens  of  the  State.  In  all  of  them,  there 
fore,  the  Conventions  called  for  the  purpose  indicated,  were,  in 
my  judgment,  irregular. 

The  history  of  the  call  of  those  bodies,  considering  separately 
such  as  were  convened  before,  and  such  as  were  convened  after 
the  close  of  the  secession  war,  is  as  follows. 

The  particulars  of  the  call  of  the  Virginia  Convention  of 
1861,  by  which  the  government  of  that  State,  wrested  from  its 
constitutional  relations,  was  reconstructed,  have  been  given  in 
former  sections  of  this  chapter,  when  treating  of  the  formation 
of  the  State  of  West  Virginia.1  The  principal  facts  only  need 
be  stated,  that  on  the  13th  of  May,  1861,  one  month  after  the 
passage  of  the  Secession  Ordinance,  "  by  a  movement  almost 
spontaneous,  the  loyal  people  of  the  Northwestern  counties 
assembled  in  mass  meeting  at  the  city  of  Wheeling,  to  deliber 
ate  on  their  condition  and  the  steps  it  behooved  them  to  take. 
After  much  discussion,  the  result  was  that  they  invited  the  loyal 
people  of  the  whole  State  to  assemble  in  Convention  at  the 
same  city,  on  the  llth  of  June  then  next,  'to  devise  such  meas 
ures  and  take  such  action  as  the  safety  and  welfare  of  the  loyal 
citizens  of  Virginia  may  demand.' "  2  This  Convention  was 
composed  of  the  members  of  the  legislature  previously  duly 
elected  under  the  existing  Constitution  and  laws,  and  of  dele 
gates  proportioned  to  the  population  of  the  counties,  each  being 
entitled  to  at  least  one.  The  Convention,  having  delegates  from 
counties  situated  to  the  east  as  well  as  the  west  of  the  Allegha- 
nies,  on  the  13th  of  June,  adopted  unanimously  a  declaration  in 
which,  after  briefly  reciting  the  acts  of  the  usurping  Convention 
and  executive,  <  in  the  name  and  on  behalf  of  the  good  people 

1  Ante,  §§  187-190. 

2  Address  of  the  Delegates  composing  the  New  State  Constitutional  Conven 
tion,  to  their  Constituents,  adopted  February  18th,  1863,  p.  12. 


RECONSTRUCTION   CONVENTIONS.  249 

of  Virginia/  they  solemnly  declared,  that  the  preservation  of 
their  dearest  rights  and  liberties  imperatively  demanded  the  reor 
ganization  of  the  government  of  the  Commonwealth,  and  that 
all  the  acts  of  the  Convention  and  executive  tending  to  separate 
the  Commonwealth  from  the  United  States,  or  to  levy  and  carry 
on  war  against  them,  were  without  authority,  and  void.  The 
Convention  then  proceeded  to  appoint,  for  a  limited  period,  a 
Governor  and  other  executive  officers,  and  directed  the  legisla 
ture,  elected  under  the  old  regime,  to  assemble  at  Wheeling 
within  a  month,  requiring  the  members  to  take  an  oath  to  sup 
port  the  reorganized  government.1 

That  these  proceedings  were  revolutionary,  there  can  be  no 
doubt.  It  is  equally  clear,  that  they  were  justifiable  on  the 
ground  of  necessity,  unless  it  be  true,  that  the  initiative  should 
have  been  taken  by  Congress,  as  intimated  in  a  preceding 
section. 

§  255.  The  only  other  instances  of  attempted  reconstruction 
of  seceding  States,  before  the  close  of  the  war,  were  those  of 
Louisiana  and  Arkansas,  which  both  took  place  under  the  Proc 
lamation  of  President  Lincoln,  of  December  8th,  1863.  This 
proclamation  contained  an  offer  of  pardon  and  amnesty  to  per 
sons  engaged  in  the  rebellion,  with  certain  exceptions,  upon  their 
ceasing  to  maintain  an  attitude  of  hostility  to  the  United  States, 
and  taking  the  oath  therein  prescribed.  It  then  proceeded  as 
follows :  — 

"  And  I  do  further  proclaim,  declare,  and  make  known,  that 
whenever,  in  any  of  the  States  of  Arkansas,  Texas,  Louisiana, 
Mississippi,  Tennessee,  Alabama,  Georgia,  Florida,  South  Caro 
lina,  and  North  Carolina,  a  number  of  persons,  not  less  than  one- 
tenth  in  number  of  the  votes  cast  in  such  State  at  the  Presiden 
tial  election  of  the  year  of  our  Lord  1860,  each  having  taken  the 
oath  aforesaid,  and  not  having  since  violated  it,  and  being  a 
qualified  voter  by  the  election  law  of  the  State  existing  imme 
diately  before  the  so-called  Act  of  Secession,  and  excluding  all 
others,  shall  reestablish  a  State  government,  which  shall  be  re 
publican,  and  in  nowise  contravening  said  oath,  such  shall  be 
recognized  as  the  true  government  of  the  State>  and  the  State 
shall  receive  thereunder  the  benefits  of  the  constitutional  pro 
vision,  which  declares  that  the  United  States  shall  guarantee  to 

1  Address  of  the  Delegates,  &c.,  uU  supra. 


250  RECONSTRUCTION  CONVENTIONS. 

every  State  in  this  Union  a  republican  form  of  government,  and 
shall  protect  each  of  them  against  invasion ;  and,  on  application 
of  the  legislature,  or  the  executive  (when  the  legislature  cannot 
be  convened),  against  domestic  violence." 

The  concluding  paragraph  of  the  proclamation  was  in  the 
following  words,  indicating  that,  in  the  view  of  Mr.  Lincoln,  the 
mode  of  initiating  a  movement  for  reconstruction  by  executive 
action,  was  not  the  only  possible  one:  — 

.  .  .  .  "  This  proclamation  is  intended  to  present  the  people 
of  the  States  wherein  the  national  authority  has  been  suspended, 
and  loyal  State  governments  have  been  subverted,  a  mode  in 
and  by  which  the  national  authority  and  loyal  State  govern 
ments  may  be  reestablished  within  said  States,  or  in  any  of 
them ;  and  while  the  mode  presented  is  the  best  the  executive 
can  suggest,  with  his  present  impressions,  it  must  not  be  under 
stood  that  no  other  possible  mode  would  be  acceptable."  1 

§  256.  In  pursuance  of  this  proclamation,  Louisana  and  Ar 
kansas  were  provided  with  loyal  State  governments ;  the  people 
of  the  former  having  been  called  upon  to  take  the  necessary 
steps  by  a  proclamation  of  Major- General  N.  P.  Banks,  of 
January  11,  1864.  The  first  step  was,  under  that  proclam 
ation,  to  elect  State  officers  on  the  22d  of  February,  1864, 
and  the  second  to  choose  delegates  to  a  Convention  on  the 
first  Monday  of  April  following,  to  revise  the  Constitution  of 
the  State.  The  particulars  of  the  proceedings  in  Arkansas  were 
similar. 

Were  any  argument  needed  to  show  that  the  reconstruction 
of  these  States,  based  as  it  was  on  the  proclamation  of  the 
Commander-in-Chief  of  the  armies  of  the  United  States,  was 
irregular  and  revolutionary,  it  would  be  found  in  the  statement 
of  General  Banks,  in  his  proclamation,  by  which  the  proceed 
ings  in  Louisiana  were  justified,  that  the  fundamental  law  of  the 
State  was  martial  law.  The  only  law  in  the  State  was  the 
arbitrary  will  of  the  commanding  general,  which  was  no  law  at 
all.  The  proceedings,  therefore,  though  not  illegal,  in  the  sense 

1  It  is  a  matter  of  history,  that  the  mode  of  reconstruction  blocked  out  by 
this  proclamation  was  not  satisfactory  to  Congress.  An  Act  was  passed  by  that 
body  relating  to  the  subject,  and  containing  its  plan  of  reconstruction,  but  was 
vetoed  by  the  President.  The  disagreement  thus  begun,  has  been  continued 
between  the  successor  of  President  Lincoln  and  the  3$th  Congress,  each  claim 
ing  the  right  to  inaugurate  the  work  of  reconstruction. 


RECONSTRUCTION    CONVENTIONS.  251 

of  contravening  any  positive  law  then  in  force,  were  wholly  with 
out  law,  and  so  revolutionary.1 

§  257.  The  Reconstruction  Conventions  of  the  eight  remain 
ing  States  —  North  Carolina,  Mississippi,  Florida,  Alabama, 
Georgia,  Texas,  Tennessee,  and  South  Carolina  —  were  all 
convened  after  the  close  of  the  war,  in  pursuance  of  the  au 
thority  of  President  Johnson.  As  the  proceedings  in  all  these 
cases  were  similar,  I  shall  refer  only  to  those  that  occurred  in 
North  Carolina,  the  first  State  in  the  order  of  time,  in  which 
attempts  at  reconstruction  were  made. 

On  the  29th  of  May,  1865,  the  following  proclamation,  relat 
ing  to  the  reorganization  of  North  Carolina,  was  issued  by 
President  Johnson,  namely  :  — 

"  WJiereas,  the  4th  section  of  the  4th  Article  of  the  Constitu 
tion  of  the  United  States  declares,  that  the  United  States  shall 
guarantee  to  every  State  in  the  Union  a  republican  form  of 
government,  and  shall  protect  each  of  them  against  invasion 
and  domestic  violence ;  and  whereas,  the  President  of  the 
United  States  is,  by  the  Constitution,  made  Commander-in- 
Chief  of  the  army  and  navy,  as  well  as  chief  civil  executive  offi 
cer  of  the  United  States,  and  is  bound  by  solemn  oath  faith 
fully  to  execute  the  office  of  President  of  the  United  States, 
and  to  take  care  that  the  laws  be  faithfully  executed ;  and 
ivhereas,  the  rebellion  which  has  been  waged  by  a  portion  of 
the  people  of  the  United  States  against  the  properly  constituted 
authorities  of  the  government  thereof,  in  the  most  violent  and 
revolting  form,  but  whose  organized  and  armed  forces  have  now 
been  almost  entirely  overcome,  has,  in  its  revolutionary  progress, 
deprived  the  people  of  the  State  of  North  Carolina  of  all  civil 
government ;  and  whereas,  it  becomes  necessary  and  proper  to 
carry  out  and  enforce  the  obligations  of  the  United  States  to 
the  people  of  North  Carolina,  in  securing  them  in  the  enjoy 
ment  of  a  republican  form  of  government : 

"  Now,  therefore,  in  obedience  to  the  high  and  solemn  duties 
imposed  upon  me  by  the  Constitution  of  the  United  States,  and 
for  the  purpose  of  enabling  the  loyal  people  of  said  State  to  or 
ganize  a  State  government,  whereby  justice  may  be  established, 
domestic  tranquillity  insured,  and  loyal  citizens  protected  in  all 

i  See  ante,  §§  109-113,  where  the  signification  of  the  term  "  revolutionary," 
as  used  by  me,  is  given. 


252  RECONSTRUCTION   CONVENTIONS. 

their  rights  of  life,  liberty,  and  property,  I,  Andrew  Johnson, 
President  of  the  United  States,  and  Commander-in-Chief  of  the 
army  and  navy  of  the  United  States,  do  hereby  appoint  William 
W.  Holden  Provisional  Governor  of  the  State  of  North  Caro 
lina,  whose  duty  it  shall  be,  at  the  earliest  practicable  period,  to 
prescribe  such  rules  and  regulations  as  may  be  necessary  and 
proper  for  convening  a  Convention,  composed  of  delegates 
chosen  by  that  portion  of  the  people  of  said  State  who  are  loyal 
to  the  United  States,  and  no  others,  for  the  purpose  of  altering 
or  amending  the  Constitution  thereof;  and  with  authority  to  ex 
ercise  within  the  limits  of  said  State  all  the  powers  necessary 
and  proper  to  enable  such  loyal  people  of  the  State  of  North 
Carolina  to  restore  said  State  to  its  constitutional  relations  to 
the  Federal  government,  and  to  present  such  a  republican  form 
of  State  government  as  will  entitle  the  State  to  the  guarantee  of 
the  United  States  therefor,  and  its  people  to  protection  by  the 
United  States  against  invasion,  insurrection,  and  domestic  vio 
lence  :  Provided  that,  in  any  election  that  may  be  hereafter 
held  for  choosing  delegates  to  any  State  Convention  as  afore 
said,  no  person  shall  be  qualified  as  an  elector,  or  shall  be  eligi 
ble  as  a  member  of  such  Convention,  unless  he  shall  have  previ 
ously  subscribed  the  oath  of  amnesty,  as  set  forth  in  the  Pres 
ident's  proclamation  of  May  29th,  A.  D.  1865,  and  is  a  voter 
qualified  as  prescribed  by  the  Constitution  and  laws  of  the  State 
of  North  Carolina  in  force  immediately  before  the  20th  day  of 
May,  A.  D.  1861,  the  date  of  the  so-called  Ordinance  of  Secession ; 
and  the  said  Convention,  when  convened,  or  the  legislature  that 
may  be  thereafter  assembled,  will  prescribe  the  qualification  of 
electors  and  the  eligibility  of  persons  to  hold  office  under  the  Con 
stitution  and  laws  of  the  State,  a  power  the  people  of  the  sev 
eral  States  composing  the  Federal  Union  have  rightfully  exer 
cised  from  the  origin  of  the  government  to  the  present  time.'' 

§  258.  In  pursuance  of  this  proclamation,  Governor  Holden 
summoned  a  Convention,  which  met  at  Raleigh  on  the  2d  day 
of  October,  1865,  and  remodelled  the  Constitution  of  North 
Carolina. 

Under  proclamations  from  time  to  time  issued  by  the  Presi 
dent  in  terms  substantially  identical  with  those  above  given, 
Conventions  met  in  all  the  States  which  were  in  a  disorganized 
condition  at  the  close  of  the  war,  and  in  like  manner  reformed 
their  Constitutions. 


RECONSTRUCTION   CONVENTIONS.  253 

With  the  question  which  has  so  agitated  the  Union,  as  to  the 
proper  department  of  the  government  to  recognize  the  recon 
structed  State  organizations,  framed  by  those  Conventions, 
whether  the  executive,  under  the  Act  of  1795,  passed  to  give 
effect  to  Article  4,  section  4,  of  the  Federal  Constitution,  above 
quoted,  or  the  Congress  of  the  United  States,  I  do  not  propose 
to  meddle.  What  I  have  to  do  with  here  is  the  previous  ques 
tion  as  to  the  legitimacy  of  .the  Conventions  by  which  those 
governments  were  formed,  —  a  question  totally  distinct  and  de 
pending  on  different  principles ;  for  it  is  evident,  that,  whatever 
be  the  proper  authority  to  recognize  those  governments,  the  act 
of  recognition  might  give  legitimacy  to  organizations  formed  by 
Revolutionary,  no  less  than  by  regular  and  lawful,  Conventions. 

As  I  have  before  intimated,  the  Conventions  called  by  the 
provisional  governors  appointed  by  President  Johnson,  were,  in 
my  judgment,  all  of  them,  irregular  and  illegitimate.  They 
.were  called  by  the  Commander-in- Chief  of  our  armies  in  the 
exercise  of  the  war  power  given  to  him  by  the  Constitution. 
While  that  exercise  of  power  was  not,  in  the  technical  sense  of 
the  term,  illegal, — for  nothing  is  illegal  to  him  who  has  by  law  an 
absolute  discretion,  —  it  was,  nevertheless,  from  the  very  nature 
of  the  case,  without  the  law  and  the  Constitution,  extra  legem, 
—  resting  for  its  limitations,  as  for  its  justification,  solely  upon 
the  necessity  of  the  case.  The  only  differences  between  the 
arbitrary  acts  of  a  military  commander,  under  the  Constitution, 
and  acts  strictly  revolutionary,  are,  first,  —  that  the  former  are 
done  with  a  view  to  the  conservation  and  defense,  and  the  latter 
with  a  view  to  the  disruption  or  overthrow,  of  the  State ;  and, 
secondly,  that  the  former,  therefore,  are  not,  and  the  latter  are, 
punishable  as  crimes  under  the  penal  code.  In  their  essential 
nature  the  acts  are  identical,  as  being  lawless  acts,  acts  done  ad 
arbitrium  and  not  ad  legem.  Let  a  military  commander  step 
but  a  hair's  breadth  beyond  what  is  demanded  by  necessity, 
shedding  a  single  drop  of  blood  when  the  shedding  of  blood  is 
no  longer  demanded,  and  his  act  is  a  crime,  or,  if  it  have  a 
political  intent  and  bearing,  an  act  of  revolution,  in  the  bad 
sense  of  the  term,  as  truly  as  that  of  one  who  attempts  to  sub 
vert  the  Constitution  of  the  State.  This  shows  that  the  two 
kinds  of  acts  are  substantially  the  same. 

But,  however  this  may  be,  it  is  clear  that  it  is  not  regularly 


254          MONTGOMERY  CONVENTION  OF  1861. 

or  constitutionally  one  of  the  duties  of  an  executive  magistrate 
to  call  Conventions  to  alter  or  amend  the  Constitution,  and, 
particularly,  is  this  true  of  the  President,  with  reference  to  Con 
ventions  in  the  States.  For  such  a  magistrate  to  do  it  is,  to 
say  the  least  of  it,  irregular,  and  to  permit  it,  except  under  the 
pressure  of  an  overruling  necessity,  —  a  necessity  such  as  would 
excuse  any  act,  however  unauthorized  or  revolutionary, — is 
dangerous. 

§  259.  In  concluding  this  survey  of  the  various  Conventions 
thus  far  held  in  the  United  States,  it  will  be  proper  to  refer  to 
the  so-called  Convention  held  at  Montgomery,  Alabama,  in 
1861,  to  frame  a  Constitution  for  the  Confederacy  of  seceded 
States.  This  Convention  was  not  called  to  frame  a  Constitu 
tion  for  either  the  United  States,  a  State  in  the  Union,  or  a  Ter 
ritory  seeking  admission  into  the  Union,  but  for  an  imaginary 
commonwealth,  —  the  dream  for  a  third  of  a  century  of  the 
States  Rights  School  of  politicians,  and  for  four  years  the  sup 
posed  realization  of  that  dream  on  the  banks  of  the  James 
River,  —  and  for  that  reason  not  proper  to  be  classed  with  either 
of  the  varieties  of  Conventions  I  have  been  considering.  In 
the  same  category  are  to  be  placed  all  such  Conventions  as 
were  held  in  the  separate  States  of  the  "  Confederacy  "  between 
the  years  1861  and  1865,  to  alter  or  abolish  the  so-called  Con 
stitutions  of  those  States,  as  members  of  the  imaginary  com 
monwealth  referred  to  —  all  equally  fictitious  Constitutions  for 
commonwealths  that  had  no  substantial  basis  either  in  law  or 
in  fact. 

My  only  purpose  in  mentioning  these  bodies  is  to  note  that, 
so  far  as  they  seemed  to  possess  a  de  facto  character  as  Consti 
tutional  Conventions,  that  is,  so  far  as  they  were  not  mere 
schools  of  abstractionists,  engaged,  for  their  own  recreation,  in 
framing  imaginary  Constitutions,  they  were  wholly  illegitimate 
and  revolutionary. 

§  260.  Having  thus  considered,  from  the  two  points  of  view 
indicated  in  the  opening  part  of  this  chapter,  the  question, 
How  should  a  Convention  be  called  ?  I  pass  to  the  other  ques- 
^  tion  there  propounded,  namely  — 

II.  By  whom  should  Conventions,  to  be  legitimate,  be 
elected? 

This  question  will  be  considered  from  the  same  two  points  of 


BY   WHOM   CONVENTIONS   SHOULD   BE   ELECTED.  255 

view  as  the  former,  namely,  (a),  from  that  of  principle,  and,  (&), 
from  that  of  historical  precedents. 

(a).  Upon  principle,  the  question,  by  whom  Conventions 
should  be  elected,  is  one  of  little  difficulty. 

1.  The  sovereign  body,  we  will  suppose,  is  already  organized 
under  a  government,  which  of  course  is  one  of  its  own  appoint 
ment,  comprising  the  usual  departments  for  its  actual  adminis 
tration.  Having  established  it,  the  sovereign  retires  from  view, 
leaving  in  the  hands  of  that  government  full  powers  not  only  to 
operate,  but  to  initiate  the  movements  necessary  to  modify,  re 
pair,  or  renew,  the  system.1  One  of  the  departments  in  every 
adequate  system  of  government  is  the  people,  in  its  narrow  sense, 
meaning  the  body  of  persons  named  by  the  sovereign  to  be  the 
immediate  depositaries  of  governmental  powers,  the  electors. 
By  this  body,  or  by  some  individuals  selected  from  it,  according 
to  established  laws,  every  function  of  government,  every  political 
act,  must  regularly  be  performed,  and  by  no  others.  The  elec 
toral  circle  determined  by  the  Constitution,  so  long  as  that  instru 
ment  remains  unchanged,  is  a  closed  one.  It  is  a  circle,  more 
over,  which  can  be  opened  and  enlarged  only  by  the  sovereign 
body  itself,  acting  in  the  modes  prescribed  by  the  Constitution 
or  by  the  customary  law  of  the  land. 

Suppose,  now,  a  Convention  is  to  be  chosen  to  change  the 
fundamental  law,  its  members  must  be  elected  by  the  body 
invested  with  political  functions,  the  electors,  or  by  some  deter 
minate  portion  of  it,  in  conformity  to  the  laws  and  customs  of 
the  commonwealth.  The  legislature,  as  we  have  seen,  is  the 
proper  body  to  direct  the  election  and  assembling  of  the  Con 
vention.  Common  sense  would  indicate  that  delegates  intended 
to  represent,  first,  the  electoral  body,  and,  through  that,  the  sov 
ereign,  if  they  are  to  represent  truly  the  different  phases  of  opin 
ion  current  among  the  people  at  large,  should  be  chosen  by  the 
entire  electoral  body.  Thus,  the  requirements  of  principle  and 
of  expediency  would  be  fully  satisfied.  To  authorize  persons 
outside  the  circle  of  the  electors  to  participate  in  the  work, 
would  be  to  extend  the  exercise  of  political  functions  to  persons 
excluded  by  the  Constitution  ;  that  is,  by  an  act  of  a  mere 
department  of  the  government,  to  modify  or  repeal  a  solemn 
provision  of  that  instrument,  by  which  its  own  powers  are  deter 
mined. 

1  See  ante,  §  25. 


256  BY   WHOM   CONVENTIONS   HAVE  BEEN  ELECTED. 

§  261.  2.  If,  on  the  other  hand,  the  sovereign  political  body 
be  in  a  state  of  disorganization,  its  Constitution  overthrown, 
and  the  departments  of  the  public  administration  deposed  from 
all  authority,  and  a  Convention  is  to  be  called  to  rebuild  the 
fabric  of  government,  by  whom  then  should  the  delegates  be 
chosen  ? 

As,  in  the  case  supposed,  all  action  would  be  the  direct  exer 
cise  of  sovereign  power,1  and  in  its  essential  nature  revolution 
ary,  there  would  be  no  law  to  govern  the  election  but  that  of 
expediency.  Such  persons  might  then  be  permitted  to  vote  as 
should  at  the  time  seem  fitted  to  exercise  the  franchise  wisely. 
In  general,  however,  a  people  thus  situated  would  find  it  expe 
dient  to  confine  the  right  of  voting  to  the  class  by  the  laws  of 
the  land,  now  obsolete,  invested  with  the  franchise  —  the  basis 
and  apportionment  of  representation  according  to  those  laws 
being  just  and  equal.  Where  they  were  unjust  or  unequal, 
the  right  of  the  people  to  change  or  abolish  them  could  not  be 
questioned. 

§  262.  (b).  It  is  believed  that  the  precedents  developed  thus 
far  in  our  history,  as  well  in  times  of  constitutional  order  as  in 
those  of  revolution,  conform  to  the  principle  just  announced. 

1.  The  Conventions  called  to  revise  Constitutions  or  to  frame 
new  ones,  during  the  period  intervening  between  1783  arid  the 
present  time,  excluding  the  Secession  and  Reconstruction  Con 
ventions,  have,  with  scarcely  any  exceptions,  been  elected  by  the 
persons  by  existing  laws  entitled  to  exercise  the  suffrage  at  the 
the  general  State  elections.  Thus,  the  Acts  calling  a  consider 
able  proportion  of  these  Conventions  expressly  gave  the  right 
of  electing  delegates  to  the  "electors  in  the  several  counties," 
or  to  the  "  qualified  electors."  2  A  rather  larger  proportion  gave 
the  right  to  all  "  persons  qualified  to  vote  for  representatives  in 
the  State  General  Assembly,"  —  the  phraseology  varying  some 
what,  but  in  all  of  them  investing  with  the  right  of  voting  for 
delegates  the  class  of  persons  constituting  the  electors  of  the 
State.3  •  In  a  few  cases  the  right  has  been  given  in  general 

1  See  ante,  §  23. 

2  Of  this  class  are  those  of  Pennsylvania,  1789  and  1837 ;  Ohio  and  Michi 
gan,  1850;   Iowa  and   Minnesota,  1857;  Kansas,  1859  (Wyandotte    Conven 
tion)  ;  West  Virginia,  1861 ;  and  Maryland,  1864. 

3  To  this  class  belong  those  of  Massachusetts,  1779,  1821,  and  1853  ;  Dela 
ware,  1831  and  1852;  North  Carolina,  1835;  New  York,  1846;  Illinois,  1847 
and  1862  ;  Kentucky,  1849  ;  and  Virginia,  1850. 


BY  WHOM   CONVENTIONS   HAVE   BEEN   ELECTED.  257 

terms  to  the  "  freeholders,"  !  to  "  the  inhabitants  of  each  county 
qualified  to  vote  for  Governor  and  Senators,"  2  or  to  "  the  inhab 
itants  of  each  county  qualified  to  vote  for  Senators."  3  In  these 
cases,  however,  it  turns  out,  upon  inspection  of  the  Constitu 
tions  or  laws  regulating  the  right  of  suffrage,  that  by  the  classes 
indicated  were  meant  the  general  body  of  the  electors  of  the 
States  respectively.  In  the  Act  calling  the  Louisiana  Conven 
tion  of  1844,  and  in  several  of  the  State  Constitutions,  which 
provide  for  the  election  of  Conventions,  the  delegates  are  re 
quired  to  be  chosen  in  the  same  manner  as  members  of  the 
General  Assembly  ;  or  the  elections  to  be  held  in  the  same  man 
ner  and  under  the  same  regulations  as  antecedent  elections  held 
to  determine  the  expediency  of  calling  Conventions,  at  which 
latter  the  persons  qualified  to  vote  were  the  "  voters,"  "  qualified 
voters,"  "  qualified  electors,"  "  electors  qualified  to  vote  for  mem 
bers  of  the  General  Assembly,"  &c.4  Generally,  however,  in 
the  cases  last  described,  the  provisions  are,  that  if  the  result  of 
the  prior  elections,  at  which  the  classes  of  persons  named  had 
voted,  should  be  in  favor  of  calling  Conventions,  the  General 
Assemblies  of  the  respective  States  shall  call  Conventions ;  from 
which,  I  think,  it  may  be  inferred,  that  the  same  voters  are  to 
figure  in  both  elections.5 

§  263.  2.  The  rule  which  seems  thus  to  be  well-nigh  univer 
sal  in  times  of  peace  and  order,  has  generally  obtained  in  those 
of  revolution.  During  our  first  revolution,  extending  from  1775 
to  1783,  although  it  is  not  easy  to  determine  the  question  with 
accuracy,  enough  is  known  to  make  it  probable  that  the  Con- 
To  these  may  be  added  in  general  the  enabling  Acts  passed  by  Congress 
authorizing  Conventions  to  frame  Constitutions  for  Territories  seeking  to  become 
States.  The  first  of  these  was  passed  for  Ohio,  and  authorized  to  vote  for  dele 
gates  all  male  citizens  of  full  age,  resident  one  year  in  the  Territory,  who  had 
paid  a  Territorial  or  county  tax,  and  had  in  other  respects  the  qualifications  to 
vote  for  Representatives  in  the  General  Assembly  of  the  Territory.  2  U.  S.  Sts. 
at  Large,  p.  173.  Substantially  the  same  were  the  enabling  Acts  of  Louisiana, 
id.  p.  641  ;  Indiana,  3  do.  p.  289 ;  Mississippi,  id.  p.  348  ;  Illinois,  id.  p.  428  ; 
Missouri,  id.  p.  545  ;  Minnesota,  11  do.  p.  166 ;  Kansas,  id.  p.  270. 

1  Act  calling  the  Virginia  Convention  of  1829. 

8  Act  calling  the  Maine  Convention  of  1819. 

3  Act  calling  the  New  Hampshire  Convention  of  1850. 

*  See  the  Constitutions  of  Ohio,  1851,  and  Minnesota,  1857. 

5  See  the  Constitutions  of  Wisconsin,  1848;  California,  1849  ;  Michigan,  1850; 
Iowa,  1857  ;  Kansas,  1859  ;  and  West  Virginia,  1863. 
17 


258  BY   WHOM    CONVENTIONS    HAVE   BEEN   ELECTED. 

ventions  were  elected  by  the  persons  authorized  under  the  laws 
of  the  several  colonies  to  vote  at  general  elections.  In  many 
cases,  however,  special  qualifications  were  required  to  insure 
the  loyalty  of  such  as  were  allowed  to  vote.  Thus,  in  Pennsyl 
vania,  the  conference  of  committees  by  which  the  Convention  of 
1776  was  called,  required,  in  addition  to  the  qualifications  of 
electors  generally,  an  oath  abjuring  allegiance  to  George  III., 
and  undertaking  not  to  oppose  the  establishment  of  a  free  gov 
ernment  by  the  proposed  Convention. 

In  a  few  cases,  the  right  of  suffrage  was  given  generally  to  the 
"  freemen  of  the  counties,"  1  to  "  the  people,"  2  or  to  "  the  sev 
eral  parishes  and  districts,"3  —  terms  which  indicate  the  exist 
ence  of  election  laws  determining  both  the  voters  and  the  modes 
of  proceeding  to  collect  and  return  their  votes. 

To  these  instances  may  be  added  those  of  the  Reconstruc 
tion  Conventions  held  in  1864-6,  which,  as  is  well  known,  were 
elected  by  such  of  the  electors  under  the  laws  of  the  several 
States  as  could  take  the  oath  of  allegiance,  &c.,  prescribed  by 
the  executive  authority  of  the  United  States. 

§  264.  A  few  cases  must  now  be  mentioned  in  which  there 
was  a  departure  from  the  principles  and  the  current  of  the  prece 
dents  set  down  in  the  preceding  sections.  The  first  of  these 
was  that  of  the  Georgia  Convention  of  1788,  which,  as  we  have 
seen,  was  elected  directly  by  the  legislature.4  The  second  case 
was  that  of  the  New  York  Convention  of  1821.  By  the  New 
York  Constitution  of  1777,  sec.  vii.,  the  following  persons  were 
made  electors,  namely :  all  male  inhabitants  of  full  age,  person 
ally  resident  in  one  of  the  counties  of  the  State,  for  six  months 
immediately  preceding  the  day  of  election,  if  during  that  time 
possessed  of  a  freehold  of  the  value  of  twenty  pounds,  within 
said  county,  or  of  a  leasehold  interest  of  the  yearly  value  of 
forty  shillings,  and  if  they  had  been  rated  and  actually  paid  taxes 
to  the  State. 

The  Act  of  Assembly  of  March  13,  1821,  caUing  the  Conven 
tion  of  that  year,  made  essential  changes  in  the  qualifications 

1  Act  calling  the  Delaware  Convention  of  1776. 

2  Act  calling  the  North  Carolina  Convention  of  1776  and  the  Vermont  Con 
vention  of  1777. 

3  Act  calling  the  Georgia  Convention  of  1776. 

4  See  ante,  §§  148,  149. 


BY   WHOM   CONVENTIONS   HAVE  BEEN   ELECTED.  259 

of  electors,  by  authorizing  to  vote  for  delegates  to  that  body  all 
free  male  citizens  of  the  State  of  the  age  of  twenty-one  years 
or  upwards,  who  should  possess  a  freehold  within  the  State ;  or 
who  should  have  been  rated  and  paid  taxes  to  the  State  ;  or  who 
;  should  have  been  actually  enrolled  in  the  militia  of  the  State, 
:  or  in  a  legal  volunteer  or  uniform  corps,  and  should  have  served 
therein  either  as  an  officer  or  private  ;  or  who  should  have  been 
or  then  were  by  law  exempt  from  taxation  ;  or  who  should  have 
been  assessed  to  work  on  the  public  roads  and  highways,  and 
should  have  worked  thereon,  or  should  have  paid  a  commutation 
therefor,  according  to  law. 

The  effect  of  this  Act  was  largely  to  extend  the  right  of  suf 
frage.  By  those  opposed  to  the  Convention,  it  was  complained, 
that  it  allowed  negroes,  excluded  from  the  right  of  suffrage  by 
the  Constitution  and  laws  before  that  in  force,  to  vote  at  the 
election  of  delegates  to  the  Convention. 

§  265.  The  next  instance  of  exceptional  legislation  in  the 
matter  of  electing  delegates  to  Conventions  occurred  in  Rhode 
Island. 

By  the  charter  of  Charles  II.,  in  force  in  Rhode  Island  until 
1842,  the  right  to  determine  the  qualifications  of  voters  was 
committed  to  the  General  Assembly.  We  have  already  seen 
that,  at  the  date  mentioned,  in  consequence  of  changes  of  the 
population  not  attended  by  corresponding  changes  in  the  basis 
of  representation,  or  in  the  qualifications  for  the  suffrage,  great 
inequalities  had  arisen  in  the  political  power  enjoyed  by  differ 
ent  parts  of  the  State  and  by  different  classes  of  the  population. 
As  a  consequence,  the  suffrage  movement  was  set  on  foot,  cul 
minating,  as  already  explained,  in  the  formation  of  the  so-called 
People's  Constitution,  the  election  of  State  officers  under  it,  and 
in  an  attempt  by  the  pretended  Governor,  Dorr,  to  establish  the 
new  government,  in  the  place  of  that  existing  under  the  Charter, 
by  military  force.1  This  revolutionary  attempt  was  easily  sup 
pressed,  but  the  legitimate  government  did  not  confine  itself  to 
forcible  measures  to  maintain  its  own  supremacy,  and  to  restore 
the  public  tranquillity.  The  Constitution  framed  by  the  legiti 
mate  Convention,  called  by  the  General  Assembly  in  1841, 
having,  through  the  efforts  mainly  of  the  suffrage  party,  been 
rejected,  another  Convention  was  called  by  the  same  body  in 
1  See  ante,  §§  227,  228. 


260  BY   WHOM   CONVENTIONS   HAVE   BEEN   ELECTED. 

the  following  year,  by  which  the  present  Constitution  of  the 
State  was  framed.  To  appease  the  discontent  of  the  "  People's 
Party,"  the  General  Assembly,  in  calling  this  Convention,  ex 
tended  the  right  of  suffrage  for  the  election  of  delegates,  repeal 
ing  the  clauses  of  existing  laws  making  property,  payment  of 
taxes,  and  military  service  qualifications  for  the  exercise  of  that 
function,  and  retaining  as  the  only  requisite  for  it  three  years' 
residence  in  the  State.1 

§  266.  Tested  by  the  principles  set  forth  in  the  preceding 
sections  of  this  work,  the  action  of  the  Georgia  and  New 
York  legislatures  was  unauthorized,  and  in  palpable  violation 
of  the  spirit  of  their  respective  Constitutions.  That  of  the 
Georgia  legislature  was  particularly  obnoxious  to  censure,  since 
that  body  undertook  not  only  to  call  a  Convention  to  remodel 
the  Constitution,  but  itself  to  appoint  the  delegates  to  constitute 
that  body  —  a  proceeding  which  made  of  the  latter  a  mere  com 
mittee  of  the  former,  and  of  the  Constitution  an  ordinary  stat 
ute,  subject  to  modification  or  repeal  by  the  General  Assembly. 

The  action  of  the  New  York  legislature,  though  less  repre 
hensible,  was  liable  to  this  serious  objection,  —  it  assumed,  being 
itself  the  creature  of  the  Constitution,  to  transfer  the  right  of  suf 
frage —  the  most  elementary  of  all  political  functions  —  from 
those  to  whom  that  instrument  had  confined  it,  to  persons  either 
expressly  or  impliedly  excluded  by  it  from  the  electoral  circle. 

The  same  observation  is  applicable  to  the  action  of  the  Rhode 
Island  General  Assembly,  unless  the  fact  that,  under  the  Charter, 
the  power  belonged  to  it  to  fix  the  qualifications  for  suffrage, 
should  be  thought  to  bring  the  case  under  a  different  rule. 
Conceding  that  this  is  so,  I  shall  only  hazard'  the  observation, 
that  such  a  power  in  the  legislature  of  changing  the  bases  of  the 
Constitution,  upon  particular  emergencies,  being  of  evil  promise, 
and  violating  all  legal  analogies,  to  say  nothing  of  the  teachings 
of  experience  in  relation  to  its  probable  consequences,  the  only 
safe  course  would  doubtless  be,  to  make  such  changes  as  are 
constitutionally  permissible,  as  the  growth  of  the  Common 
wealth  requires  them,  and  because  it  requires  them,  and  not  as 
concessions,  long  wrongfully  withheld,  and  at  last,  against  the 
spirit  of  the  Constitution,  yielded  to  discontent. 

1  Considerations  on  the  Questions  of  the  Adoption  of  a  Constitution  and  Ez~ 
tension  of  Suffrage  in  Rhode  Island,  by  E.  R.  Potter,  p.  21. 


CHAPTER   V. 

§  267.  THE  Convention  having  been  called,  our  next  inquiries 
relate  to  the  general  structure  or  constitution  of  the  body,  to  its 
internal  organization  and  to  its  modes  of  proceeding. 

The  constitution  of  a  Convention  may  be  considered  with 
reference,  first,  to  its  membership  —  the  qualifications  therefor  — 
and,  secondly,  to  the  question  of  its  subdivision  into  separate 
chambers,  possessed  of  a  mutual  negative  upon  each  other. 

1.  The  first  question  —  Who  may  be  members  of  a  Con 
vention? —  receives  an  explicit  answer  in  but  one  of  our  Consti 
tutions,  that  of  Kentucky,  of  1850.  Article  XII.  of  that  Con 
stitution  requires  that  they  shall  be  "  possessed  of  the  same 
qualifications  of  a  qualified  elector." 

In  none  of  the  Acts  calling  Conventions,  so  far  as  I  have  been 
able  to  discover,  have  the  qualifications  of  delegates  been  speci 
fied,  except  in  the  following  cases  :  —  The  New  York  Conven 
tion  Act  of  1821,  made  eligible  as  delegates  all  persons  entitled 
by  that  law  to  vote  for  delegates ;  the  North  Carolina  Conven 
tion  Act  of  1835,  all  free  white  men,  of  the  age  of  twenty-one 
years,  one  year  resident  in  the  State,  and  possessed  of  the  free 
hold  qualifications  required  of  a  member  of  the  House  of  Com 
mons  under  the  existing  Constitution ;  the  Pennsylvania  Con 
vention  Act  of  1837,  "  no  delegate  to  represent  any  other  district 
than  that  in  which  he  shall  have  resided  for  one  whole  year  next 
preceding  the  election ; "  the  New  Hampshire  Convention  Act 
of  1850,  any  person  who  by  the  laws  of  this  State  is  a  qualified 
voter  in  the  town  or  district  in  which  he  may  be  elected ;  the 
Ohio  Convention  Act  of  the  same  year,  all  persons  having  the 
qualifications  of  an  elector;  the  Delaware  Convention  Act  of 
1852,  any  white  male  citizen  of  the  State  of  the  age  of  twenty- 
four  years  or  upwards ;  the  Iowa  Convention  Act  of  1857,  all 
persons  having  the  qualifications  of  a  senator  in  the  General 
Assembly ;  the  Maryland  Convention  Act  of  1864,  all  persons 


262  WHO  ARE  ELIGIBLE  TO   CONVENTIONS? 

having  the  qualifications  for  a  seat  in  the  House  of  Delegates ; 
and  the  Acts  of  Congress  authorizing  the  Nevada  and  Nebraska 
Conventions  of  1864,  all  persons  qualified  by  law  to  vote  for 
representatives  to  the  General  Assembly  of  those  Territories 
respectively. 

§  268.  In  the  Constitutions  of  several  of  the  States,  now  in  force, 
after  making  provision  for  calling  Conventions  under  certain 
circumstances,  the  delegates  thereto  are  required  to  be  "  chosen 
in  the  same  manner,  at  the  same  places,  and  at  the  same  time," 
as  the  representatives  to  the  General  Assembly,  and  the  same  or 
equivalent  phraseology  is  found  in  many  of  the  Acts  of  the  State 
legislatures  by  which  Conventions  are  called.  So,  also,  in  the 
enabling  Acts  passed  by  Congress,  authorizing  Conventions  in 
Territories,  there  is  commonly  inserted  a  provision  requiring  the 
elections  to  be  "  conducted  in  the  same  manner  as  is  prescribed 
by  the  laws  of  the  Territory  regulating  elections  therein  for 
members  of  the  House  of  Representatives."  To  these  add,  what 
is  believed  to  be  the  fact,  that  in  no  case  has  any  person  ever 
been  elected  as  a  delegate  to  a  Convention  in  the  United  States 
who  was  not  a  citizen-elector,  resident  in  the  State  where  the 
Convention  was  called,  and  the  case,  upon  one  side,  is  presented. 
If  it  does  not  establish  the  fact,  that,  as  a  general  rule,  no  one, 
not  possessing  at  least  the  general  qualifications  of  an  elector,  is 
eligible  to  a  Convention,  it  certainly  raises  a  strong  implication 
to  that  effect. 

§  269.  Against  these  facts  should  be  set  off  the  declarations 
of  certain  authorities,  in  and  out  of  Conventions,  laying  down 
an  opposite  rule,  according  to  which  the  electors  may  choose 
whom  they  will  to  represent  them  in  those  bodies,  whether  quali 
fied  electors  or  not,  even  if  non-residents  of  the  State,  and  that, 
whether  restricted  by  the  Act  calling  the  Convention  or  not. 
Thus,  the  opinion  has  been  expressed,  that  "the  delegates  may 
be  individuals  from  any  class,  including  the  ministers  of  religion, 
the  Governor,  and  other  public  functionaries,  and  the  judges  "  l  — 
persons,  by  many  of  our  Constitutions,  excluded  from  occupying 
seats  in  our  General  Assemblies,  or  from  holding  any  other  places 
of  honor  or  profit.  So,  in  the  Pennsylvania  Convention  of  1837, 
it  was  intimated  that,  had  the  county  of  Philadelphia  elected 
Albert  Gallatin,  a  citizen  and  resident  of  New  York,  as  its  dele- 
l  Hinton's  Hist.  U.  S.,  Vol.  II.  pp.  324-327. 


SHOULD   CONVENTIONS  CONSIST  OP  TWO  .CHAMBERS  ?          263 

gate,  it  would  have  been  competent  for  that  body  to  admit  him 
to  a  seat,  in  the  face  of  the  Act  of  the  legislature,  above  referred 
to,  localizing  the  elections  of  its  members.1  Those  who  advo 
cate  this  freedom  of  election  might,  perhaps,  with  some  plausi 
bility  claim,  that,  inasmuch  as  the  function  of  a  Convention  is 
to  recommend,  not  to  enact,  constitutional  changes,  free  scope 
should  be  allowed  to  the  electors  to  employ  the  best  talent  they 
can  find,  wholly  without  restriction ;  and  that  what  reason  thus 
indicates  to  be  expedient,  the  fact  that  most  of  our  laws  and 
Constitutions  are  wholly  silent  as  to  who  may,  and  who  may 
not  be  members  of  Conventions,  demonstrates  with  sufficient 
clearness  to  be  according  to  the  intent  of  those  who  framed 
them. 

§  270.  2.  In  relation  to  the  question  of  subdividing  Conven 
tions  into  two  chambers,  with  a  check  upon  each  other,  after  the 
plan  of  our  legislative  Assemblies,  it  is  not  my  purpose  to  en 
large.  So  long  as  those  bodies  confine  themselves  to  their 
legitimate  function,  of  advisers,  and  abstain  from  acts  of  legis 
lation,  which  belong  to  another  department,  the  legislature,  their 
present  constitution,  in  a  single  chamber,  is  without  danger, 
and,  having  the  merit  of  simplicity,  is  doubtless  preferable  to 
any  other.  Such  has  uniformly  been  the  constitution  exhibited 
by  them  thus  far.  The  idea,  however,  has  been  advanced,  that 
a  Convention  of  two  houses  would  better  answer  its  constitu 
tional  purpose  than  of  one.  In  the  New  York  Convention  of 
1846,  Mr.  Ruggles  introduced  a  resolution  recommending,  that 
all  future  Conventions  called  in  that  State  should  consist  of  two 
chambers.  It  was  received  with  little  favor,  however,  and  was 
not  pressed.  In  1857,  the  Convention  of  Minnesota  realized  as 
a  fact  the  constitution  which  had  only  been  elsewhere  imagined. 
The  two  political  parties  in  the  Convention,  Republicans  and 
Democrats,  disagreeing  as  to  the  organization  of  the  body, 
formed  separate  Conventions,  which  ran  parallel  courses,  each 
claiming  to  be  the  only  legitimate  Convention.  Two  Constitu 
tions  were  reported,  and  it  seemed  that  the  people  were  to  be 
embarrassed  by  the  necessity  of  choosing  between  them,  when, 
toward  the  close  of  their  respective  sessions,  a  conference  was 
had  between  the  two  bodies,  and  a  single  Constitution  reported 
to,  and  adopted  by  them  both.  It  seems  clear,  that  this  mode 
l  Deb.  Pa.  Cony.,  1837,  Vol.  I.  p.  400. 


264  INTERNAL   ORGANIZATION  OF   CONVENTIONS. 

of  organizing  has  decided  advantages.  A  Constitution,  accept 
able  to  all  political  parties  in  a  State,  must  be  free  from  partisan 
legislation  ;  must  contain,  as  it  ought,  only  measures  whose  pol 
icy  or  expediency  had  been  thoroughly  settled  in  the  public  mind. 

§  271.  By  a  very  remarkable  exhibition  of  moderation,  what, 
in  Minnesota,  resulted  from  disagreement,  was  in  New  Jersey, 
in  1844,  substantially  effected  by  amicable  arrangement  between 
political  parties.  Those  parties  did  not  separate  after  assem 
bling  in  Convention,  but,  by  an  arrangement  recommended  by 
the  members  of  the  legislature,  in  concurrence  with  influential 
persons  throughout  the  State,  delegates  were  elected  to  the  Con 
vention  from  all  the  districts,  save  one,  by  each  of  the  parties.1 
It  is  impossible  to  commend  too  highly  an  example  which  must 
have  sprung  solely  from  a  view  to  the  public  good.  Where  all 
parties  were,  in  point  of  numbers,  on  a  par,  it  could  be  only 
by  combinations,  not  reasonably  to  be  expected,  that  measures 
having  a  party  bearing  could  be  carried  in  Convention.  Al 
though  it  is  not  so  stated,  the  inference  is,  that  the  delegates 
elected  sat  together  in  a  single  chamber. 

§  272.  I  pass  now  to  consider  the  internal  organization  of 
Conventions. 

The  call  under  which  a  Convention  assembles,  may  contain 
specific  directions  in  reference  to  its  organization,  in  which  case, 
it  will  be  the  duty  of  the  body  to  follow  those  directions  to  the 
letter.  As  the  case  has  never  occurred  in  which  it  has  been 
attempted  to  prescribe  more  than  a  few  of  the  most  important 
particulars,  and  as  no  attempt  is  likely  to  be  made  to  hamper 
such  a  body  by  minute  regulations,  the  subject  will  be  dismissed 
without  further  comment.  The  alternative  is,  that  the  Act  call 
ing  the  Convention  should  be  silent  as  to  the  points  indicated. 
This  case  embraces  most  of  the  Conventions  thus  far  held  in 
the  United  States,  the  call  generally  confining  itself  to  the  time 
anci  mode  of  electing  the  delegates,  the  qualifications  of  the 
electors,  the  time  of  assembling  of  the  Convention,  and  such 
other  particulars  as  either  fall  more  naturally  within  the  scope 
of  legislative  authority,  or  as  require  to  be  definitely  settled 
before  the  body  meets.  Such,  on  the  other  hand,  as  are  inci 
dental  to  the  exercise  of  the  functions  of  the  Convention,  as 
such,  are  commonly  left  to  the  discretion  of  the  body  itself, 
i  Mulford,  Hist.  N.  J.,  pp.  495,  496. 


THE   CALL  TO  ORDER.  265 

§  273.  The  usual  mode  of  initiating  the  organization  of  a 
Convention,  is  for  some  member  elect  to  call  the  body  to  order 
and  move  the  election  of  a  presiding  officer  pro  tempore.  In 
nearly  all  the  Conventions  whose  proceedings  have  been  pub 
lished,  such  has  been  the  course  pursued.1  In  a  few  instances, 
the  body  has  been  called  to  order  by  some  person  who  was  at 
once  a  member  of  the  Convention  and  an  officer  of  the  existing 
government.  Thus,  in  Massachusetts,  in  1820,  the  Convention 
was  called  to  order  by  the  Lieutenant-Governor,  William  Phil 
lips,  who  was  also  member  for  the  town  of  Boston.  The  Cali 
fornia  Convention,  held  in  1849,  and  that  formed  by  the  Demo 
cratic  members  of  the  Minnesota  Convention  of  1857,  were 
respectively  called  to  order  by  the  Secretaries  of  the  Territorial 
governments,  sitting  as  members  of  the  Conventions.  Except 
in  the  case  last  named,  in  which  there  was  a  split  in  the  Conven 
tion,  no  stress,  so  far  as  I  am  aware,  has  ever  been  laid  on  the 
fact,  that  the  Convention  had  or  had  not  been  called  to  order  by 
an  official  person.  In  that  case,  there  was  a  strife  to  establish 
for  the  several  fragments  into  which  the  body  was  divided,  a 
character  as  the  legitimate  Convention.  The  Democratic  mem 
bers,  who  had  receded  from  the  hall  where  the  Convention  was 
to  assemble,  on  finding  it  occupied  by  the  Republicans,  by  whom 
an  organization  had  been,  as  was  charged,  prematurely  effected, 
claimed  for  their  Convention,  subsequently  organized  in  another 
place,  a  higher  legitimacy,  because  opened  by  the  Secretary  of 
the  Territory.  The  Act  under  which  the  Convention  met,  how 
ever,  contained  no  directions  requiring  the  Secretary,  as  such,  to 
attend  the  Convention.  Being  a  member,  his  action,  therefore, 
must  be  presumed  to  have  been  in  that  capacity,  and  not  in  that 
of  Territorial  officer.2 

1  This  was  the  course  in  Illinois,  in  1847  and  1862;  in  Kentucky,  in  1849; 
in  Ohio,  in  1850;  in  the  Republican  Convention  of  Minnesota,  in  1857  ;  in  Vir 
ginia,  in  1829  and  1850  ;  in  Wisconsin,  in  1847  ;  in  Massachusetts,  in  1853  ;  in 
Pennsylvania,  in  1837  ;  in  Iowa,  in  1857  ;  and  in  Louisiana,  in  1844  and  1852. 
Some  Convention  Acts  prescribe,  that  the  Secretary  of  State  shall  attend  the 
Convention  to  furnish  a  list  of  the  members  elect     Such  was  the  case  in  New 
York,  in  1821  and  1846;  in  Michigan,  in  1850;  and  in  Illinois,  in  1847.     In 
New  York  and  Michigan,  the  Secretary  read  the  list  of  members,  and  then  some 
member  moved  the  election  of  officers  pro  tern.,  after  which  the  body  was  called 
to  order. 

2  The  disruption  of  this  Convention  was  occasioned  by  the  fact  that  the  ena 
bling  Act  had  named  no  hour  at  which  the  Convention  was  to  assemble.     Moved 


266  OFFICERS   OF   THE   CONVENTION,    HOW   CHOSEN. 

§  274.  The  officers  of  a  Convention  are  either  temporary  or 
permanent.  In  most  Conventions,  the  first  proceeding,  after  the 
call  to  order,  has  been  the  appointment  of  a  president,  a  secre 
tary  or  secretaries,  a  sergeant-at-arms,  and  occasionally  some 
other  officers,  pro  tempore.  The  mode  of  appointment  has  been 
uniformly  by  viva  voce  vote,  as,  at  this  stage  of  the  organization, 
is  proper  and  necessary.  On  the  basis  of  this  temporary  organi 
zation  a  permanent  one  is  then  effected.  The  permanent  officers 
of  a  Convention  are  usually  a  president,  one  or  more  clerks  or 
secretaries,  sergeant-at-arms,  door-keeper,  and  messengers.1  In 
a  majority  of  cases  these  officers  have  been  elected  by  ballot, 
either  with  or  without  a  requisition  to  that  effect  in  the  call  of 
the  Convention.  In  about  one-third  of  the  cases,  however,  they 
have  been  elected  viva  voce,  and  in  a  few,  the  President  has  been 
elected  by  ballot,  and  the  inferior  officers  by  viva  voce  vote,  or 
by  resolution.2  Beside  the  permanent  officers  above  named, 
in  most  Conventions  there  have  also  been  appointed  a  chaplain  or 
chaplains,  a  printer,  and  one  or  more  reporters.  As  to  the  first 
of  these  officers,  the  chaplain,  the  practice  is  not  uniform.  In  a 
few  instances,  a  single  person  has  been  elected  to  that  office  for 
the  session  ;  but  in  far  the  greater  number,  a  resolution  has  been 
adopted  early  in  the  Convention,  inviting  the  clergy  of  the  dif 
ferent  denominations,  resident  in  the  places  where  the  Conven 
tions  were  sitting,  to  officiate  as  chaplains  in  rotation.3  So,  in 

by  alleged  threats,  that  the  Democratic  members  would  seize  the  hall  of  the 
Convention  at  an  early  hour  and  forestall  the  organization,  the  Republican  mem 
bers  in  a  body  took  possession  of  it  during  the  night  preceding,  and  held  it  until 
the  usual  hour  for  organizing  such  bodies  arrived. 

1  In  all  the  Conventions  in  Massachusetts,  the  first  officer  elected  was  a  secre 
tary  ;  and,  in  that  of  1853,  it  was  strongly  contended  that  such  a  course  was  the 
most  proper  one.     Deb.  Mass.  Cony.,  1853,  Vol.  I.  p.  9. 

2  They  were  elected  by  ballot,  in  New  York,  in  1821  and  1846  ;  in  Virginia, 
in  1829;  in  Massachusetts,  in  1820  and  1853;  in  Pennsylvania,  in  1789;  in 
Illinois,  in  1847  ;  California,  in  1849  ;  in  Michigan,  in  1850  ;  in  Louisiana,  in  1844  ; 
in  Ohio,  in  1850 ;  and  in  Wisconsin,  in  1847  ;  and  by  viva  voce  vote  in  Illinois, 
in  1862  ;  in  Kentucky,  in  1849;  in  Indiana,  in  1850  ;  in  Minnesota  (Republican 
Convention),  in  1857;  in  Pennsylvania,  in  1837;  in  Louisiana,  in  1852;  and 
in  Iowa,  in  1857.     In  the  Minnesota  Democratic   Convention,  in  1857,  they 
were  elected  by  resolution. 

3  A  chaplain  was  elected  in  the  following  Conventions ;  both  those  of  Min 
nesota,  in  1857;  those  of  Massachusetts  in  1820  and  1853,  and  in  that  of  Mary 
land,  in  1850;  while  in  the  following,  the  resident  clergy  officiated  as  stated; 
those  of  Kentucky,  1849;  Illinois,  1847  and  1862;  California,  1849  ;  New  York, 


REPORTS  OF  THE  PROCEEDINGS  OF  CONVENTIONS.     267 

regard  to  printer,  the  practice  has  been  various.  In  a  few  cases 
the  Act  calling  the  Convention  has  required  or  authorized  it, 
when  convened,  to  elect  a  printer,  either  unconditionally,  or  upon 
certain  prescribed  terms.1  In  much  the  greater  proportion  of 
the  cases,  however,  the  enabling  Acts  have  been  silent  on  the 
subject,  and  those  bodies  have  elected  such  persons,  and  on  such 
terms,  as  they  thought  best.  In  two  or  three  instances,  the 
printer  so  selected  has  been  the  official  printer  of  the  State  or 
Territory.  The  Act  calling  the  Michigan  Convention  of  1850, 
required  the  State  printer  to  do  the  work  of  the  Convention,  and 
that  body  acquiesced  in  the  provisions  of  the  Act.  In  the  Illi 
nois  Convention  of  1862,  the  same  spirit  was  not  manifested. 
The  Act  under  which  it  assembled,  made  it  the  duty  of  the 
Secretary  of  State  "  to  cause  such  printing  to  be  done  as  the 
Convention  shall  from  time  to  time  require."  Although  this 
Act  was  not  couched,  perhaps,  in  such  terms  as  to  leave  the 
duty  of  the  Convention  free  from  doubt,  since  it  seemed  to  be 
optional  with  that  body  to  make  or  not,  as  it  should  see  fit, 
requisitions  upon  the  secretary  for  printing ;  still  it  is,  on  the 
whole,  clear  enough,  that  the  legislature  intended  to  put  the 
printing  of  the  Convention  into  the  hands  of  a  public  officer  of 
the  State.  The  Convention  evidently  so  interpreted  the  Act, 
for,  in  the  discussions  which  followed  the  motion  to  elect  a  prin 
ter,  it  was  assumed  that  such  was  the  intention  of  the  legislature. 
The  Convention  took  its  stand  upon  a  question  of  power,  con 
tending  that  the  legislature  was  incompetent  to  fetter  the  discre 
tion  of  that  body  in  the  appointment  of  its  own  officers.  It 
consequently  refused  to  obey  the  Act  as  thus  interpreted,  and 
elected  a  printer  of  its  own. 

§  275.  In  Conventions,  some  provisions  have  generally,  and 
very  properly,  been  made  for  preserving,  for  general  circulation, 
reports  of  their  debates  and  proceedings.  In  all,  or  nearly  all, 

1821  and  1846;  Michigan,  Ohio,  and  Indiana,  in  1850;  Virginia,  1829  and 
1850;  Wisconsin,  1847;  Pennsylvania,  1837;  Iowa,  1857;  and  Louisiana,  1844 
and  1852.  In  Massachusetts,  in  1779,  the  clergy  who  were  members  of  the  Con 
vention  officiated. 

1  Such  was  the  case  in  Illinois,  in  1847;  Kentucky,  in  1849;  and  Iowa,  in 
1857 ;  in  which  no  terms  were  prescribed  ;  and  in  New  York  in  1846,  and  Mich 
igan  and  Ohio  in  1850,  in  the  first  two  of  which  the  Conventions  were  limited 
in  the  amount  to  be  paid  to  the  rate  paid  for  the  legislative  printing,  and  in  the 
latter,  to  a  designated  sum. 


268  CREDENTIALS  AND  LIST   OF  MEMBERS. 

their  journals  have  been  published.  In  a  much  smaller  number, 
have  been  published  full  reports  of  their  debates.  In  the  latter 
cases,  the  Conventions  have  commonly  elected  official  reporters 
among  their  regular  officers,  without  any  special  authorization 
of  the  legislature  calling  them.1  In  a  considerable  number,  no 
official  reporter  has  been  appointed,  but  the  reports  published 
have  been  the  work  of  private  enterprise.2  In  the  case  of  the 
Indiana  Convention  of  1850,  the  Act  calling  it  had  required  the 
Governor  to  engage  the  services  of  a  stenographer  for  the  Con 
vention.  This  was  done,  and  the  Convention  received  and 
employed  him ;  though  not  without  questioning  the  right  of 
the  legislature  to  dictate  to  that  body  who  should  act  as  its 
officers.  Of  the  Ohio  Convention  of  1850,  the  reporter  was 
appointed,  before  the  Convention  assembled,  by  the  State  legis 
lature.  On  his  presenting  himself  to  the  Convention^  however, 
a  similar  discussion  arose,  as  to  the  right  of  appointment,  but 
the  Convention  acquiesced  in  the  action  of  the  legislature.  The 
Act  calling  the  Pennsylvania  Convention  of  1837,  specially  au 
thorized  that  body  to  engage  the  services  of  a  competent  ste 
nographer,  a  course  probably  wiser  than  any  other,  as  avoiding 
discussion. 

§  276.  It  is  obvious  that  in  a  numerous  assembly,  convened 
as  a  result  of  popular  elections,  some  system  is  necessary  for 
determining  who  have  been  elected,  and  are  consequently  en 
titled  to  take  part  in  its  deliberations.  In  the  various  Conven 
tions,  the  practice  on  this  point  has  been  far  from  uniform, 
though  there  is  apparent  in  them,  after  all,  a  sort  of  regularity. 
In  a  considerable  proportion  of  them,  generally  the  same  in 
wThose  organization  the  initial  step  had  been  the  appointment  of 
officers  pro  tempore,  a  list  of  the  members,  furnished  by  the  Sec 
retary  of  State  or  other  officer  of  the  existing  government,  to 
whom  the  official  returns  of  the  elections  had  been  made,  or 
drawn  up  by  the  officers  of  the  Convention  themselves,  has  been 
called  over  immediately  after  the  temporary  organization,  and 

l  This  was  the  case  in  the  following  Conventions .  Massachusetts,  1853 ;  Wis 
consin,  1847;  Kentucky,  1849;  Missouri,  1820  ;  Michigan,  1850  ;  Iowa  and  the 
two  Minnesota  Conventions,  1857;  California,  1849  ;  Louisiana,  1844  and  1852; 
and  Illinois,  1862. 

8  In  this  class  are  the  Conventions  of  Massachusetts,  1820;  New  York,  1821 
and  1846  ;  Virginia,  1829  ;  and  Illinois,  1847. 


SHOULD  MEMBERS  OP  CONVENTIONS  BE  SWORN?      269 

the  credentials  of  the  members  have  thereupon  been  presented 
and  approved.1  The  list  having  thus  been  verified,  the  Conven 
tion  has  been  prepared  to  enter  upon  business.  In  some  cases, 
the  list  of  delegates  has  been  presented  by  some  officer  of  the 
government,  and  read  in  the  first  instance,  before  the  tempo 
rary  organization  has  been  effected.2  In  others,  after  the  tem 
porary  organization,  the  first  business  transacted  has  been  the 
raising  of  a  committee  on  credentials,  upon  whose  report  the 
list  of  members  for  future  use  has  been  founded.3 

In  those  Conventions,  on  the  other  hand,  in  which  no  tempo 
rary  organization  has  been  made,  the  practice  has  been  equally 
varied.  In  Pennsylvania  in  1776  and  1789,  in  New  York  in 
1821,  and  in  Indiana  in  1850,  a  list  of  the  delegates  elected,  fur 
nished  by  the  Secretary  of  State  or  other  officer  of  the  gov 
ernment,  was  read  in  the  first  instance,  before  any  attempt  at 
organization.  In  Maryland  in  1776,  and  in  Massachusetts  in 
1820  and  1853,  a  committee  on  credentials  was  raised,  in  the 
first  case  after,  but  in  the  two  Massachusetts  Conventions  before, 
the  permanent  organization  ;  and  in  one  case,  that  of  the  Vir 
ginia  Convention  of  1829,  the  roll  was  not  called  or  verified 
until  after  the  completion  of  the  permanent  organization. 

§  277.  The  question  whether  the  members  of  a  Convention 
should  be  sworn  before  entering  upon  their  duties,  has  been  vari 
ously  answered  in  different  Conventions.  Of  the  whole  number 
whose  proceedings  have  been  accessible  to  me,  about  one  half 
only  have  administered  an  oath.  These  were  the  following 
Conventions:  those  of  Pennsylvania,  1776;  North  Carolina, 
1835 ;  New  Jersey,  1844 ;  Missouri,  1845 ;  Illinois,  1847  and 
1862;  California  and  Kentucky,  1849 ;  Ohio  and  Indiana,  1850; 
Iowa  and  the  two  Minnesota  Conventions,  in  1857 ;  and  Mary 
land,  in  1864.  On  the  other  hand,  an  oath  was  not  adminis 
tered  in  the  following  Conventions :  Maryland,  1776  and  1850 ; 
Tennessee,  1796  and  1834 ;  Virginia,  1829  and  1850 ;  Pennsyl 
vania,  1789  and  1837  ;  New  York,  1821  and  1846 ;  Massachu- 

1  This  was  done  in  Illinois  in  1847  and  1862,  Kentucky  in  1849,  Ohio  and 
Virginia  in  1850,  California  in  1849,  Pennsylvania  in  1837,  Iowa  in  1857,  and 
Louisiana  in  1852. 

2  These  were  the  Conventions  of  New  York  in  1846,  and  Michigan  in  1850. 

3  In  Minnesota  in  1857  (both  Conventions),  in  Wisconsin  in  1847,  in  Iowa 
in  1857,  and  in  Louisiana  in  1844. 


270  SHOULD   MEMBERS   OP  CONVENTIONS   BE   SWORN? 

setts,  1779,  1821,  and  1853  ;  Michigan,  1850;  Wisconsin,  1847; 
and  Louisiana,  1812,  1844,  and  1852.  In  those  Conventions  in 
which  an  oath  has  been  administered,  the  most  common  form 
has  been  substantially  that  used  by  the  Illinois  Convention  of 
1847,  which  was  as  follows :  "  You  do  solemnly  swear,  that  you 
will  support  the  Constitution  of  the  United  States,  and  that 
you  will  faithfully  discharge  your  duty  as  delegates  to  this  Con 
vention,  for  the  purpose  of  revising  and  amending  the  Constitu 
tion  of  the  State  of  Illinois."  That  administered  in  Maryland, 
in  1864,  beside  the  foregoing,  contained  an  oath  of  allegiance 
to  the  government  of  the  United  States.  A  more  restricted 
form  was  employed  in  the  California  Convention  of  1849,  and 
in  the  Minnesota  Republican  Convention  of  1857,  namely : 
"  You  do  solemnly  swear  that  you  will  support  the  Constitution 
of  the  United  States." 

§  278.  In  several  of  the  Conventions  in  which  an  oath  has 
been  administered,  opposition  has  been  made  either  to  taking 
any  oath  at  all,  or  to  taking  one  in  the  form  proposed  by  the 
Convention,  or  prescribed  by  the  Act  under  which  it  assembled. 

1.  It  has  been  urged  that  no  oath  was  necessary  or  proper ; 
that  if  the  Convention  was  a  mere  committee,  with  powers 
only  of  proposing  amendments,  it  was  a  useless  ceremony  to 
bind  it  by  oaths  to  do  or  not  to  do  acts  which  it  could  do  only 
on  the  hypothesis  that  it  possessed  a  power  of  self-direction 
inconsistent  with  its  supposed  character  ;  that  it  was  even  dan 
gerous  so  to  do,  as  involving  an  admission,  that,  without  an  oath 
or  some  positive  prohibition,  it  would  have  power,  and  perhaps 
be  at  liberty,  to  act  definitively.  On  the  other  hand,  if  the  Con 
vention  was  an  embodiment  of  the  sovereignty  of  the  State  or 
nation,  empowered  to  pull  down  and  reconstruct  the  edifice  of 
government,  as  freely  as  the  sovereign  could  itself  do,  were  it 
possible  for  it  to  act  in  person  and  directly,  then  an  oath  would 
be  doubly  futile,  since  it  could  not  fetter  a  power  that  was  prac 
tically  unlimited  and  uncontrollable, 

In  reply  to  this,  however,  it  has  been  forcibly  urged  that,  if 
not  necessary,  it  is  proper  that  a  body  like  a  Convention,  in 
trusted  with  important  public  duties,  should  deliberate  under 
the  obligation  of  an  oath ;  that  it  could  do  no  harm,  and  might 
operate  to  restrain  members  from  doing,  for  selfish  or  partisan 
ends,  that  by  which  the  interest  of  the  people  at  large  might  be 


FORM   OP  THE  OATH   TO   BE  ADMINISTERED.  271 

jeopardized.  This  would  become  more  apparent,  when  it  was 
considered  that  an  oath  derives  its  efficacy  more  from  its  ten 
dency  to  remind  the  taker  of  his  obligation  to  a  higher  power, 
than  from  any  liability  the  taking  of  it  may  impose  upon  him 
to  punishment  for  perjury. 

§  279.  2.  What  form  of  oath  should  be  used  has,  however, 
been  more  frequently  the  subject  of  dispute  than  whether  any 
oath  was  proper.  In  Conventions  to  frame  State  Constitutions, 
assuming  that  an  oath  is  to  be  administered  at  all,  it  is  gener 
ally  conceded  to  be  proper  that  it  should  embrace  an  undertak 
ing  to  be  faithful  and  obedient  to  the  Constitution  of  the  United 
States.  This  could  not  well  be  contested,  since  the  State  Con 
stitutions  are,  by  the  terms  of  the  Federal  charter,  to  be  valid 
only  when  conformable  to  its  provisions.  It  is  also  generally 
admitted  to  be  proper,  if  an  oath  be  taken  at  all,  that  the  mem 
bers  should  be  sworn  honestly  and  faithfully  to  perform  their 
duties  as  members  of  the  Convention.  A  question  of  more 
difficulty  is,  whether  the  oath  should  contain  a  clause  to  sup 
port  the  Constitution  of  the  State.  This  question  has  been 
raised  in  several  Conventions,  and  has  been  uniformly  decided 
in  the  negative.1  The  reasonings  of  the  opposite  parties  upon 
this  question  have  been  based  on  their  respective  conceptions 
of  the  nature  and  powers  of  a  Convention.  Those  who  have 
opposed  taking  the  oath  have  done  so  on  the  ground,  that  to  do 
so  would  be  inconsistent  with  their  duties  as  members  of  a 
Convention  ;  that  they  were  deputed  by  the  sovereign  society  to 
pull  to  pieces,  or,  as  some  have  expressed  it,  "  to  trample  under 
their  feet,"  the  existing  Constitution,  and  to  build  up  instead  of 
it  a  new  one  ;  that  to  take  an  oath  to  support  the  Constitution 
of  the  State,  would  be  to  swear  that  they  would  not  perform 
the  very  duty  for  which  they  were  appointed. 

§  280.  On  the  other  hand,  it  has  been  contended,  that  it  is  no 
part  of  the  duty  of  a  Convention  to  pull  to  pieces  the  existing 
Constitution  of  the  State ;  that  by  the  true  theory  of  such  a 
body,  it  is  advisory  merely ;  having  power  to  overhaul  the  Con 
stitution,  search  out  its  defects,  and  recommend  such  changes 

i  It  arose  in  the  Louisiana  Convention  of  1844,  in  the  Ohio  Convention  of 
1850,  the  Iowa  Convention  of  1857,  and  the  Illinois  Convention  of  1862.  In 
the  last  case  the  oath  to  support  the  Constitution  of  the  State  had  been  pre« 
scribed  by  the  Act  calling  the  Convention. 


272        FORM  OF  THE  OATH  TO  BE  ADMINISTERED. 

as  should  in  its  view  promise  to  remedy  them,  but  to  conclude 
nothing;  that  in  this  view  of  a  Convention,  the  Constitution  is 
in  full  vigor  and  operation  as  much  when  that  body,  having 
completed  its  task,  should  suffer  dissolution,  as  when  it  first 
assembled  ;  that,  in  the  mean  time,  if  unrestrained,  a  Conven 
tion  might,  under  a  claim  of  power  to  exercise  sovereign  rights, 
"trample  under  its  feet"  every  one  of  those  liberties  secured 
against  ordinary  usurpation  by  the  Bill  of  Rights;  it  might 
suspend  the  writ  of  Habeas  Corpus,  raise  a  standing  army  and 
quarter  it  in  peace  upon  the  citizens  without  their  consent,  de 
stroy  the  liberty  of  the  press,  declare  those  who  should  offend 
its  dignity  to  be  guilty  of.  felony  and  punish  them,  by  its  own 
hands,  with  death.  Surely,  if  such  usurpations  are  possible,  no 
matter  what  the  theory  of  their  powers  may  be,  Conventions 
ought  to  be  placed  under  all  the  restraints  that  can  be  devised 
to  prevent  them.  Undoubtedly  one  of  the  most  powerful  of 
these  is  an  oath  to  support  the  Constitution,  in  which  are  bound 
up  these  liberties,  and  which  therefore  must  first  be  infringed 
before  those  liberties  can  be  violated. 

§  281.  In  the  case  of  two  Conventions,  those  of  North  Caro 
lina,  in  1835,  and  Illinois,  in  1862,  the  Acts  under  which  those 
bodies  assembled  prescribed  the  form  of  the  oath  to  be  taken. 
In  the  former,  great  opposition  having  existed  to  the  call  of  a 
Convention,  on  the  part  of  a  powerful  minority  in  the  State 
legislature,  in  the  Act  finally  passed,  restrictions  were  imposed 
upon  the  Convention  as  to  the  extent  arid  nature  of  the  amend 
ments  it  should  propose,  requiring  it  to  report  amendments  upon 
three  points,  and  giving  to  it  discretionary  authority  to  propose 
others  upon  nine  points  particularly  described  in  the  Act.  The 
Act  then  proceeded  to  require  that  no  delegate  should  be  per 
mitted  to  take  his  seat  in  Convention  until  he  should  have  taken 
and  subscribed  an  oath  or  affirmation  as  follows :  "  I,  A.  B.,  do 
solemnly  swear  (or  affirm,  as  the  case  may  be)  that  I  will  not 
directly  or  indirectly  evade  or  disregard  the  duties  enjoined  or 
the  limits  imposed  to  this  Convention  by  the  people  of  North 
Carolina,  as  set  forth  in  the  Act  of  the  General  Assembly,  passed 
in  1834,  entitled  '  An  Act  to  amend  the  Constitution  of  the 
State  of  North  Carolina/  which  Act  was  ratified  by  the  peo 
ple." 

To  the  taking  of  this  oath,  objection  was  raised  in  the  Con- 


FORM   OF  THE   OATH  TO   BE  ADMINISTERED.  273 

vention,  on  the  ground,  that  the  legislature  had  no  right  to  im 
pose  it,  some  being  of  the  opinion  that,  if  taken,  it  would  bind 
the  members  to  concur  in  all  the  amendments  proposed.  Others 
thought  it  would  merely  restrict  the  Convention  to  the  consid 
eration  of  those  amendments,  without  at  all  prescribing  -the 
view  it  should  adopt  respecting  them.  Others  still  raised  the 
question,  what  would  be  the  effect  should  the  Convention  tran 
scend  the  limits  imposed,  and  submit  to  the  people  other  amend 
ments,  which  should  be  adopted,  citing  the  case  of  the  Federal 
Convention,  which  disregarded  the  limitations  imposed  by  the 
States,  and  instead  of  a  revised  Confederation  recommended  a 
national  government.  At  length  it  was  pointed  out,  that  there 
was  absolutely  no  escape  from  taking  the  oath  ;  that  by  the 
terms  of  the  Act  no  delegate  should  be  permitted  to  take  his 
seat  in  the  Convention  until  he  had  taken  the  prescribed  oath. 
It  was  a  condition  precedent  to  their  organization,  and  if  it  was 
objected,  that  the  legislature  had  transcended  its  authority  in 
imposing  the  condition,  it  might  be  answered  that  the  Act  rested 
not  alone  on  the  authority  of  the  legislature,  but  on  that  of  the 
people  to  whom  it  had  been  submitted.  This  view  prevailed, 
and  the  oath  was  taken  by  all  the  members.1 

§  282.  In  the  Illinois  case,  the  Act  calling  the  Convention  had 
prescribed,  that  the  members,  before  entering  upon  their  duties, 
should  "  each  take  an  oath  to  support  the  Constitution  of  the 
United  States,  and  of  this  State,  and  to  faithfully  discharge  his 
duties  as  a  member  of  said  Convention."  The  taking  of  this 
oath  was  strenuously  opposed,  on  the  two  grounds,  before  men 
tioned,  that  the  legislature  had  no  power  to  impose  it,  and  that 
the  clause  relating  to  the  Constitution  of  the  State  was  incon 
sistent  with  the  general  tenor  of  the  Act  calling  the  body  to 
gether  as  a  Convention.  It  is  unnecessary  to  rehearse  the  argu 
ments  in  support  of  these  positions,  or  those  by  which  it  was 
attempted  to  refute  them.  The  question  of  power  in  the  legis 
lature  to  bind  a  Convention  in  such  a  case,  will  come  up  for 
consideration  in  a  subsequent  chapter.  As  before  stated,  the 
result  of  the  discussion  was,  that  the  Illinois  Convention,  by  a 
formal  vote,  refused  to  obey  the  Act  under  which  it  assembled,  in 
regard  to  the  form  of  the  oath  to  be  taken  by  its  members.  The 
oath  actually  administered  was  substantially  the  same  as  that 

1  Deb.  N.  C.  Cony.  1835,  pp.  4-8. 
18 


274  FORM    OF   THE   OATH   TO    BE   ADMINISTERED. 

taken  by  the  Illinois  Convention  of  1847,  and  differed  from  that 
prescribed  mainly  in  omitting  the  words,  "  and  of  this  State," 
upon  which  the  debate  arose. 

§  283.  Upon  the  question  involved  in  the  Illinois  case,  I  sha11 
make  but  a  single  observation,  and  that  in  relation  to  the  alleged 
incongruity  between  the  undertaking  contained  in  the  oath,  and 
the  actual  business  of  the  Convention. 

When  a  member  of  a  Convention  swears  to  support  the  Con 
stitution  of  his  State,  what  Constitution  is  it  he  swears  to  sup 
port  ?  Is  it  the  written  instrument  —  the  Constitution  considered 
as  evidence  of  an  objective  fact  —  or  the  objective  fact  itself  — 
the  actual  Constitution  ?  Substantially,  the  latter  only.  He 
calls  God  to  witness  that,  while  inspecting  the  written  Consti 
tution,  to  see  if  it  adequately  expresses  the  real  Constitution,  to 
which  the  Commonwealth  has  grown  since  the  last  revision,  he 
will  not  violate,  but  will  protect  and  defend,  those  essential  rights, 
and  respect  and  conform  to  those  particular  limitations  and  ad 
justments,  which  make  up  that  real  Constitution  ;  though  he 
doubtless  adds  that,  pending  the  utterance  of  the  fiat,  by  which 
obsolete  or  inadequate  provisions  of  the  written  Constitution  are 
stricken  from  its  pages,  he  will  respect  them  also  as  the  funda 
mental  law  of  the  land.  But,  suppose  every  copy  of  the  Con 
stitution,  considered  as  an  instrument  of  evidence,  were  destroyed, 
and  the  memory  of  its  contents  utterly  blotted  out,  the  real  Con 
stitution  would  remain,  the  Constitution  to  which  the  oath  mainly 
refers.  So  that,  if  we  were  to  admit  that  it  is  the  duty  of  a  Con 
vention  to  eradicate  from  the  written  Constitution,  and  to  tram 
ple  under  its  feet  such  part  thereof  as  the  Commonwealth  has 
outgrown,  the  oath  would  still  refer  to  that  greater  part  which 
is  living  and  operative. 

The  charge,  then,  that  there  is  any  inconsistency  between  the 
oath  supposed,  and  the  function  of  a  member  of  a  Convention, 
however  broad  the  powers  of  the  latter  be  conceived  to  be,  is  a 
gross  absurdity,  resulting  from  confusion  of  ideas  as  to  the  real 
meaning  of  the  term  Constitution.  Much  more  is  it  an  absurdity 
in  view  of  the  fact,  that  a  Convention  is  a  body  of  very  narrow 
powers,  charged  only 'with  pointing  out  defects  and  recommend 
ing  remedies,  but  with  a  right,  ordinarily,  to  conclude  nothing. 

§  284.  Immediately  after  the  permanent  organization,  there  is 
generally  appointed  a  committee  to  report  a  body  of  rules  for 


RULES   OF   ORDER.  275 

the  government  of  the  Convention,  or  to  facilitate  the  transac 
tion  of  its  business.  Pending  the  preparation  of  this  report,  in 
about  half  the  cases,  a  resolution  has  been  carried  to  adopt  for 
their  government,  for  the  time  being,  the  rules  of  the  last  House 
of  Representatives  of  the  State,  so  far  as  applicable.  In  a  few 
instances,  the  rules  of  the  last  Convention  have  been  temporarily 
put  in  force,  and  in  one  case,  that  of  California,  in  1849,  those 
laid  down  in  Jefferson's  "  Manual  of  Parliamentary  Law."  As 
to  the  character  of  the  rules  adopted,  it  may  be  said,  in  general, 
that  they  are,  in  substance,  the  same,  so  far  as  they  are  strictly 
rules  of  order,  and  not  rules  determining  the  modes  of  proceed 
ing,  as  those  by  which  our  legislatures  are  commonly  governed. 
The  differences  are  such  as  result  either  from  the  special  and 
limited  character  of  Conventions,  as  compared  with  legislative 
Assemblies,  or  from  the  relative  importance  of  their  respective 
duties.  In  the  former,  for  instance,  there  is  not,  probably,  a 
necessity  for  the  same  safeguards  against  haste,  surprise,  or 
inadvertence,  as  in  the  latter,  inasmuch  as  the  volume  of  the  laws 
to  be  passed  upon  is  smaller,  or  against  the  combinations  of 
interested  parties,  as  the  legislation  performed  by  them  is  less 
near  to  the  interests  or  the  party  prejudices  of  their  members  or 
others.  Thus,  it  is  sometimes  provided,  that  clauses  may  be 
adopted  as  parts  of  the  proposed  Constitution,  upon  a  less  num 
ber  of  readings  than  would  be  safe,  or  than  is  usual,  in  case  of 
ordinary  laws.  On  the  other  hand,  by  reason  of  the  vastly 
greater  importance  of  the  subjects  of  deliberation  in  Conven 
tions,  the  rules  often  grant  a  much  greater  facility  for  reconsid 
eration  than  in  legislative  Assemblies.  Thus,  in  the  Massachu 
setts  Convention  of  1853,  on  motion  of  the  Hon.  Henry  Wilson, 
the  ordinary  rule  requiring  a  motion  for  reconsideration  to  be 
made  by  one  who  voted  with  the  majority,  was  so  modified,  as 
to  permit  any  member  to  make  it,  whether  he  had  voted  with  the 
majority  or  not.  Greater  latitude  is,  also,  in  many  cases,  allowed, 
as  to  the  time  within  which  that  motion  must  be  made.1 

1  The  relaxation  of  the  rule  as  to  time  seems  to  be  much  more  reasonable 
than  as  to  the  mover.  As  was  well  said  by  Mr.  Quincy,  in  the  Massachusetts 
Convention  of  1820,  it  is  proper,  before  allowing  a  reconsideration,  to  require 
some  evidence  that  a  reconsideration  would  lead  to  a  different  result  from  that 
already  attained,  else  it  would  be  a  mere  loss  of  time ;  and  a  motion  by  one  of 
the  majority  to  reconsider,  is  proper  evidence  of  that  fact.  The  Convention  of 
1820,  after  some  discussion,  refused  to  modify  the  general  rule  as  to  reconsider 
ations. 


276  MODE   OP   PROCEEDING. 

§  285.  The  Convention  having  organized,  by  the  appointment 
of  officers  and  the  adoption  of  rules  of  order,  and,  therefore, 
being  ready  to  proceed  to  business,  a  question  of  great  perplexity 
and  of  great  importance  thereupon  arises :  "  What  shall  be  the 
mode  of  proceeding  ?  —  a  question,  in  short,  of  method. 

This  question  involves  two  subordinate  ones,  which  I  will 
take  up  in  their  order,  namely,  first,  What  arrangements,  if  any, 
shall  be  made  whereby  the  labor  of  the  Convention  may  be  fa 
cilitated  by  subdivision  ?  —  a  question  properly  of  instrumental 
ities  ;  and,  secondly,  In  what  manner  shall  those  instrumen 
talities  prosecute  the  task  apportioned  to  them  ? 

First.  Of  the  first  question,  two  practical  solutions  may  be 
given. 

1.  The  Convention  may  enter  upon  its  task — the  framing  or 
the  amending  of  a  Constitution  —  directly,  in  Convention,  as  it 
is  called  —  that  is,  without  resolving  itself  into  a  committee  or 
committees.  In  this  mode  of  proceeding  the  course  of  business 
would  be,  to  take  up  the  existing  Constitution  of  the  State,  or 
that  of  some  other  State,  or  some  model  or  project  presented  by 
individuals,  subject  it  to  a  round  of  discussions  in  Convention, 
and  finally  to  adopt  it  as  the  proposed  Constitution,  or  as  an 
amendment  thereto.  The  disadvantages  attending  this  mode 
are  so  patent  and  so  numerous,  that  it  is  doubtful  if  it  would 
ever  be  adopted,  as  it  is  believed  that  it  never  has  been  adopted. 
The  leading  objection  to  it  is,  that  the  deliberations  of  any  nu 
merous  assembly,  which  should  adopt  it,  would  be  at  once  pro 
tracted  and  fruitless.  It  is  obvious  that  every  member  might 
present  his  scheme,  and  rightfully  claim  for  it  regular  and  or 
derly  consideration  ;  and,  in  the  absence  of  the  concert  of  action 
secured  by  committees,  a  great  number  of  schemes,  turning  out 
ultimately  to  be  futile  or  inadequate,  would  undergo  protracted 
discussion,  which,  with  a  proper  mode  of  proceeding,  would  be 
nipped  in  the  bud.  Besides,  the  immense  labor  of  maturing, 
in  all  its  details,  a  large  number  of  connected  fundamental  Acts, 
would  have  to  be  done,  according  to  this  mode,  by  the  entire 
Convention  —  an  arrangement,  for  business  efficiency,  to  be 
equalled  in  absurdity  only  by  a  military  plan,  which  should  re 
quire  to  be  detailed  for  every  duty  of  camp  or  field,  however 
trivial,  the  entire  force  of  all  arms  in  the  command. 

§  286.   2.    The  alternative  is,  the  employment  of  one  or  more 


MODE   OF   PROCEEDING.  277 

committees  to  prepare  and  report  a  Constitution,  or  parts  there 
of,  or  amendments  thereto,  for  the  consideration  of  the  Conven 
tion.  And,  as  intimated  above,  this  course  has  been  adopted 
with  perfect  unanimity  by  the  Conventions  to  whose  proceed 
ings  I  have  had  access.  Upon  one  point,  however,  there  has 
been  very  great  divergence  of  opinion,  and  that  is,  in  relation  to 
the  number,  and,  if  more  than  one,  the  mode  of  appointment  of 
those*  committees. 

§  287.  (a).  As  to  the  number  of  committees,  a  very  common 
opinion,  when  the  subject  is  first  discussed,  is  that  there  should  be, 
for  convenience  and  despatch  of  business,  but  a  single  commit 
tee  —  the  committee  of  the  whole.  Those  who  advocate  this 
mode  of  proceeding  claim  for  it  simplicity  and  directness  as  well 
as  efficiency,  and  they  usually  propose  that  the  Constitution 
which  is  to  be  taken  as  a  model  for  imitation  or  the  basis  for 
amendments,  should  be  read ;  that  each  member  should  there 
upon  be  allowed  perfect  freedom  of  discussion ;  and,  when  it 
has  been  determined  what  the  views  of  the  body  are,  that  the 
committee  should  report,  and  the  whole  matter  be  at  once,  as  it 
could  readily  be,  concluded.  At  the  same  time  it  is  commonly 
admitted,  that  this  course  would  be  impracticable  in  an  ordinary 
legislature,  by  reason  of  the  complexity  and  multifariousness  of 
the  subjects  brought  up  for  its  action ;  but  this  is  supposed  not 
to  hold  true  of  a  Convention,  because,  it  is  said,  its  business  is 
relatively  simple  and  homogeneous.  Hence,  in  almost  every 
Convention  ever  held,  so  far  as  I  am  aware,  there  have  been 
advocates  of  a  reference  of  its  whole  business,  in  the  first  in 
stance,  to  a  committee  of  the  whole. 

§  288.  (b.)  Another  plan,  adopted  in  a  few  cases  in  Conven 
tions  engaged  in  framing  first  Constitutions,  is  to  appoint  a 
single  select  committee  of  limited  numbers,  to  digest  from  such 
materials  as  may  be  at  hand,  the  models  of  political  amateurs 
or  the  Constitutions  of  neighboring  States,  a  draft  of  a  Consti 
tution  to  be  considered  by  the  Convention.  As  this  plan  in 
volves  the  necessity  either  for  great  haste  on  the  part  of  the 
committee,  or  of  much  delay  and  inactivity  on  that  of  the  Con 
vention,  pending  the  preparation  of  the  report,  it  has  been  rarely 
employed.  Of  all  the  Conventions  whose  records  have  reached 
me,  only  ten  have  adopted  this  plan,  namely,  those  of  Mary 
land,  Virginia,  New  Jersey,  and  Pennsylvannia,  held  in  1776 ; 


278  MODE   OF   PROCEEDING. 

those  of  New  York  and  Vermont,  held  in  1777 ;  those  of  Mas 
sachusetts,  held  in  1778  and  1779 ;  that  of  Tennessee,  held  in 
1796  ;  and  that  of  California,  held  in  1849. 

§  289.  (c.)  A  third  mode  of  proceeding  by  the  use  of  com 
mittees,  is  for  the  Convention  to  apportion  the  work  to  be  done 
among  several  committees,  giving  to  each  an  article  or  other 
definite  portion  of  the  existing  Constitution,  embracing  a  dis 
tinct  topic,  as  the  Executive,  Legislative,  or  Judicial  department, 
the  Finances,  Education,  Bill  of  Rights,  and  the  like  ;  each  com 
mittee  to  report  in  the  form  of  articles  and  sections  such  provis-  ! 
ions  as  it  shall  deem  necessary. 

These  are  evidently  all  the  modes  of  which  the  subject  is 
capable  ;  and  the  one  last  described  is  that  which  has  very  gen 
erally  been  adopted.  The  mode  of  proceeding  by  a  committee 
of  the  whole,  has  been  examined  to  some  extent  already ;  but  it 
may  be  proper  here  to  inquire  with  some  particularity  into  the 
merits  of  that  mode,  as  compared  with  that  last  described,  by 
numerous  committees  —  a  question  which  has  given  rise  to 
much  discussion  in  several  Conventions,  and  is  likely  to  be  again 
discussed  hereafter. 

§  290.  In  favor  of  proceeding  in  committee  of  the  whole,  it 
has  been  urged,  that  if  it  be  an  object  to  save  time  or  to  secure 
the  exercise  of  all  the  talent  in  the  Convention,  the  best  course 
is  to  make  use  of  that  committee ;  that,  if  a  Constitution  is  to  be 
adequately  discussed,  the  appointment  of  several  committees,  in 
the  first  instance,  to  report  upon  distinct  portions  of  it,  would 
increase  rather  than  diminish  the  time  occupied  in  the  session, 
since,  while  the  reports  were  being  prepared,  the  Convention 
would  be  forced  to  remain  idle  ;  and  the  several  reports  being 
likely  to  be  incongruous  and  more  or  less  unacceptable  to  the 
Convention,  every  part  of  them  would  need  to  be  amended  and 
brought  into  harmony  with  other  parts  and  with  the  sentiments 
of  the  majority  in  the  body  ;  that  the  wisdom  and  experience  of 
the  entire  Convention  are  at  least  equal  to  those  of  any  com 
mittee  chosen  therefrom ;  that  it  is  the  proper  province  of  the 
Convention,  as  it  is  of  a  legislature,  to  settle  principles,  and  of 
committees  to  arrange  details ;  hence,  it  is  evident  that,  when 
the  members  of  a  Convention  have  learned,  from  a  full  and  free 
discussion  in  committee  of  the  whole,  unembarrassed  by  the 
rules  that  must  be  enforced  in  Convention,  the  principles 


MODE   OF   PROCEEDING.  279 

deemed  by  the  collective  body  necessary  to  be  embodied  in  the 
Constitution,  they  would  be  enabled,  even  if  afterwards  subdi 
vided  into  committees,  to  act  with  greater  expedition  and  with 
greater  intelligence  ;  that  it  is  also  no  slight  recommendation  of 
the  committee  of  the  whole,  that  on  account  of  its  freedom  from 
the  stringent  rules  that  hamper  the  Convention,  and  of  the  prac 
tice  which  usually  prevails  of  not  reporting  fully,  if  at  all,  the 
speeches  made  in  that  committee,  men  unused  to  public  debate 
are  enticed  from  their  benches,  and  encouraged  to  contribute 
their  wisdom  to  the  common  stock ;  that  it  is  also  well  not  to 
forget,  as  one  inducement  to  proceed  in  committee  of  the  whole, 
that  in  all  great  legislative  contests  for  freedom,  the  "  Grand 
Committee,"  the  committee  of  the  whole,  has  been  the  instru 
ment  by  which  victory  has  been  achieved ;  that  the  crowning 
argument,  however,  in  favor  of  this  committee,  is,  that  if  re 
course  be  had  to  the  alternative,  the  appointment  of  one  or 
more  select  committees,  it  is  difficult,  if  not  practically  impos 
sible,  to  withstand  their  influence,  or  to  modify  their  reports.  A 
select  committee  naturally  comprises  the  best  talent  in  the 
house.  When  a  report  is  brought  in  by  it,  pride  of  opinion 
leads  it  to  defend  its  offspring,  and  this  its  skill  and  experience 
generally  enable  it  to  do  successfully.  In  a  free  and  unre- 
ported  debate,  however,  in  committee  of  the  whole,  in  which 
the  Constitution  is  taken  up  and  read  section  by  section,  com 
mented  upon,  and  amended,  no  such  danger  need  be  appre 
hended.  It  is  the  opinion  formally  announced  and  published  to 
the  world,  not  the  casual  observation,  unreported,  and  confess 
edly  not  mature,  that  its  author  defends  with  vigor  and  per 
tinacity. 

§  291.  The  objections  to  proceeding  in  committee  of  the 
whole,  on  the  other  hand,  resolve  themselves  mainly  into  a 
question  of  time.  It  is  said,  that  if  every  member  of  a  Con 
vention  is  permitted  to  introduce  his  scheme  of  a  Constitution, 
or  his  proposition  of  amendment,  with  liberty  and  encourage 
ment  to  discuss  each  and  all  of  them  ad  libitum,  the  task  of 
framing  a  Constitution  would  be  endless ;  and  not  only  so,  but 
such  a  freedom  of  making  and  discussing  propositions,  instead 
of  tending  to  harmonize  the  views  of  members,  would  intro 
duce  an  element  of  division  ;  that  what  a  single  member  pro 
poses  in  committee  of  the  whole,  is  the  conclusion  of  a  single 


280  MODE  OF   PROCEEDING. 

mind,  in  which  no  other  mind  may  agree;  whilst,  on  the  other 
hand,  the  report  of  a  committee  of  leading  members  is,  at  least, 
the  consentaneous  opinion  of  many  minds,  and  probably  will 
be  that  of  the  whole  Convention  when  it  has  been  brought  by 
discussion  to  understand  the  subject ;  that  it  is  not  always  true 
that  the  wisdom  or  the  experience  of  a  Convention  will  be  equal 
to  that  of  a  few  of  its  leading  minds,  when  we  speak  of  it  as 
embodying  itself  in  action,  whatever  may  be  the  case  in  relation 
to  counsel ;  in  a  Convention  there  will  be,  of  course,  a  greater 
total  of  wisdom  and  talent  than  in  any  committee  of  it  less 
than  the  whole ;  but  in  those  qualities  a  small  committee,  or  a 
single  person,  may  surpass  the  residue  of  the  body,  and  yet  it 
may  go  for  nothing,  unless  the  majority  be  very  tractable. 
Hence,  it  is  far  better  that  the  Convention  should  listen  to  the 
matured  opinions  of  its  few  leading  minds  before  committing 
itself  by  expressing  its  own  ;  that  the  committee  of  the  whole 
undoubtedly  has  its  eminent  uses  in  a  Convention,  but  it  is 
rather  after  than  before  the  reports  of  standing  or  special  com 
mittees  have  come  in.1 

§  292.  In  favor  of  proceeding  by  committees  charged  severally 
with  distinct  parts  of  the  Constitution,  it  has  been  urged,  that 
it  is  the  appropriate  duty  of  a  committee  to  prepare  and  lay  out 
business  for  the  deliberative  body  appointing  it,  and  that  neither 
a  Convention  nor  a  legislature  can  successfully  proceed  without 
them  ;  that  they  contribute  essentially  to  simplify  the  complex 
matters  referred  to  them,  and  thus  to  expedite  the  labors  of  the 
Convention ;  that  a  committee  chosen  from  a  numerous  assem 
bly,  and  embracing  a  variety  of  talent  and  experience,  will  be 
able  readily  to  prognosticate  the  determinations  of  the  Conven 
tion,  by  divining  its  wishes,  which  are  quite  likely  to  accord 
with  those  of  any  fairly  selected  committee ;  that  this  consider 
ation  disposes  of  the  objection,  founded,  perhaps,  in  part,  upon 
the  observed  accordance  between  the  votes  of  a  numerous  body 
and  the  recommendations  of  a  committee  of  its  leading  mem 
bers,  namely,  that  committees  are  undesirable  as  possessing  too 

1  For  full  discussions  of  the  advantages  and  disadvantages  of  proceeding  in 
committee  of  the  whole,  in  the  first  instance,  see  the  Debates  in  the  following 
Conventions:  Kentucky,  1849,  pp.  39-54;  New  York,  1846,  pp.  20-37; 
California,  1849,  pp.  22-24  ;  Michigan,  1850,  pp.  20,  21 ;  Ohio,  1850,  pp.  47,  48 ; 
Pennsylvania,  1837,  Vol.  I.  pp.  65,  66,  77,  95. 


MODE   OP  PROCEEDING.  281 

much  influence,  and  as  too  much  inclined  to  use  that  influence 
to  secure  the  adoption  of  their  own  recommendations ;  that, 
thus  viewed,  committees  do  not  so  much  dictate  to  those  who 
appoint  them,  as  discover  to  them  in  a  few  moments  what  is 
likely  to  be  their  own  better  judgment  after  floundering,  perhaps, 
for  weeks  or  months,  in  useless  discussion ;  that,  at  all  events, 
there  need  be  no  fear  of  excessive  influence  in  committees,  for 
the  reason  that,  when  their  reports  come  in,  they  are  open  to 
debate  and  amendment  if  not  satisfactory,  precisely  like  propo 
sitions  made  by  individual  members,  and  so  are  likely  to  receive 
modification,  if  prejudiced  or  unreasonable. 

§  293.  The  objections  to  the  use  of  committees  have  already, 
in  part,  been  suggested.  It  is  contended,  that  their  reports  are 
likely  to  want  consistency  and  congruity,  when  considered  as 
parts  of  a  whole  ;  that  a  Constitution  built  up  by  the  action  of 
a  large  number  of  committees  is  liable  to  lack  provisions  of  essen 
tial  importance,  through  inadvertent  omissions ;  that  however 
that  may  be,  the  labor  of  melting  down  into  a  consistent  unit 
the  heterogeneous  reports  of  many  committees,  of  discovering 
and  supplying  defects,  and  trimming  down  redundancies,  is  not 
less  than  that  so  much  apprehended  in  committee  of  the  whole ; 
but  it  is  chiefly  objected,  that  when  such  committees  do  the  work, 
the  Convention  loses  its  power  of  control  over  it;  they  will  be 
organized  in  such  a  manner  as  that  the  talent  and  influence  to 
be  found  in  the  Convention  will  be  brought  to  bear  upon  partic 
ular  propositions,  and  that  individuals  will  be  powerless  to  coun 
tervail  them. 

§  294.  The  reasonings  in  favor  of  the  mode  of  proceeding  in 
committee  of  the  whole,  without  standing  committees,  of  which  I 
have  given  an  outline,  however  plausible  they  seem,  have  failed, 
in  every  case,  to  convince  the  Conventions  to  which  they  were 
addressed,  and  those  bodies  have  adopted,  as  have  all  the  Con 
ventions  but  one  whose  proceedings  have  reached  me,  the  mode 
of  proceeding  by  one  or  more  standing  committees,  in  preference 
to  it.  The  Pennsylvania  Convention  of  1789,  alone  pursued  the 
other  plan,  taking  up  the  Constitution  of  1776  in  committee  of 
the  whole,  and  inquiring,  during  a  large  part  of  the  session, 
"  whether  and  wherein  "  it  required  alteration  or  amendment.1 

1  Jour.  Pa.  Conv.  1789,  p.  143,  et  seq.  In  the  North  Carolina  Convention  of 
1835,  Mr.  Speight  said  he  believed  the  Convention  which  framed  the  old  Consti- 


282  MODE   OP   PROCEEDING. 

§  295.  The  precedents  established  in  the  various  Conventions 
in  relation  to  the  number  of  committees,  and  of  members  ap 
portioned  to  each,  have  been  far  from  uniform.  With  the 
exception  of  the  ten  Conventions  already  specified,  in  which  a 
single  committee  was  raised  to  draft  and  report  a  Constitution, 
and  of  the  Pennsylvania  Convention  of  1789,  in  which,  as  I 
have  just  stated,  the  subject  was  taken  up  in  committee  of  the 
whole,  all  the  Conventions  ever  held,  so  far  as  I  am  advised, 
have  appointed  several  committees,  the  least  number  being  four, 
and  the  highest  thirty-one.1  The  number  of  committees  has 
commonly  been  determined  by  the  views  entertained  by  mem 
bers  as  to  the  number  of  distinct  parts  of  the  Constitution,  or 
separate  topics  embraced  in  it,  needing  revision.  To  the  com 
mittees  charged  with  these,  is  commonly  added  a  number  of 
business  committees,  as  on  Printing  for  the  Convention,  and 
the  like.  In  determining  the  number  of  members  in  each  com 
mittee,  regard  is  generally  had  to  the  importance  of  the  subjects 
committed,  and  the  number  of  delegates  in  the  body,  the  work 
being  commonly  so  apportioned  as  to  give  each  member  some 
share  in  the  committee-labor. 

§  296.  How  the  number  of  standing  committees,  and  of  the 
members  of  which  each  shall  consist,  shall  be  determined,  has  in 
many  cases  been  the  subject  of  vehement  discussion.  This  has 
been  the  consequence  mainly  of  jealousies  between  the  friends 
and  the  opponents  of  the  reforms  contemplated  in  calling  the 

tution,  first  proceeded  in  committee  of  the  whole,  and  then  made  a  reference  of 
the  different  subjects  to  their  appropriate  committees.  Deb.  N.  C.  Conv.  1835, 
p.  17. 

l  The  Virginia  Convention  of  1829  had  four  Standing  Committees,  —  one  on 
each  of  the  departments,  Legislative,  Executive,  and  Judicial,  and  one  on  the 
residue  of  the  Constitution,  including  the  Bill  of  Rights.  The  Illinois  Conven 
tion  of  1862  had  thirty-one  committees,  upon  the  following  subjects:  Executive 
Department ;  Legislative  Department ;  Judiciary ;  Judicial  Circuits ;  Bill  of 
Rights ;  Congressional  Apportionment ;  Legislative  Apportionment ;  Federal 
Relations  ;  Banks  and  Currency ;  Revenue  ;  Finance ;  Railroad  Corporations  ; 
Counties;  Municipal  Corporations;  Miscellaneous  Corporations;  Education; 
Militia  and  Military  Affairs ;  Elections  and  Right  of  Suffrage ;  Schedule ; 
Revision  and  Adjustment  of  the  Articles  of  the  Constitution ;  Internal  Im 
provements  ;  Roads  and  Internal  Navigation ;  Public  Accounts  and  Expen 
ditures  ;  Township  Organization ;  State  Institutions,  Buildings,  and  Grounds ; 
Canal  and  Canal  Lands ;  Penitentiary ;  Retrenchment  and  Reform ;  Manu 
factures  and  Agriculture ;  Printing  and  Binding ;  and  Miscellaneous  Subjects. 


MODE   OF   PROCEEDING.  283 

Conventions.  In  the  Pennsylvania  Convention  of  1837,  the 
New  York  Convention  of  1846,  and  the  Kentucky  Convention 
of  1849,  the  mode  of  determining  the  committees,  which  was 
finally  adopted,  was  vigorously  opposed  as  calculated  to  iavor 
particular  views  of  reform.  That  mode  was  to  appoint  a  select 
committee  to  report  generally  upon  the  best  mode  of  proceeding, 
including  such  a  scheme  of  committees  as  should  in  its  view 
cover  the  whole  ground  of  needed  changes  in  the  Constitution. 
This  course  evidently  remits  the  entire  question  of  methods  and 
instrumentalities,  in  the  first  instance,  to  a  committee  of  the 
Convention,  with  the  well  understood  purpose  of  conceding  to 
its  recommendations,  unless  clearly  unjust  or  impracticable,  a 
decisive  influence.  It  has,  nevertheless,  been  generally  deemed 
the  most  satisfactory  one  that  could  be  adopted,  though  in  two 
of  the  three  cases  in  which  it  was  most  largely  discussed,  another 
course  was  pursued.  It  was  followed  in  the  two  Virginia  Con 
ventions,  held  in  1829  and  1850 ;  the  last  two  of  New  York,  in 
1821,  and  1846;  the  North  Carolina  Convention  of  1835;  the 
New  Jersey  Convention  of  1844 ;  that  of  Missouri,  of  1845 ;  the 
Ohio,  Michigan,  and  Indiana  Conventions  of  1850;  that  of 
Wisconsin,  of  1848 ;  the  two  Minnesota  Conventions,  and  the 
Iowa  Convention  held  in  1857  ;  and  the  Massachusetts  Conven 
tion  of  1853.  Where  this  mode  is  pursued,  the  preliminary 
committee  is  usually  appointed  immediately  after  the  perma 
nent  organization  of  the  Convention,  and  commonly  consists 
of  one  or  more  members  from  each  senatorial  or  other  political 
division  of  the  State.  In  its  report,  this  committee  generally 
contents  itself  with  recommending  a  list  of  standing  committees 
based  on  its  view  of  the  prospective  work  of  the  Convention, 
though  sometimes  there  is  added  a  resolution  relating  to  the 
disposition  of  propositions  of  amendment  introduced  in  Con 
vention.  Where  this  mode  is  not  pursued,  the  committees  are 
commonly  appointed  either  on  the  motion  of  some  member,1 
or  upon  the  recommendation  of  the  committee  on  rules,  a  list 
of  them  in  such  cases  forming  a  part  of  its  report.2 

1  They  were  thus  appointed  in  the  Louisiana  Conventions  of  1844,  1852, 
and  1864;  in  that  of  Kentucky  of  1849,  Maryland  of  18G4,  and  Massachusetts 
of  1820. 

2  This  was  the  case  in  the  Pennsylvania  Convention  of  1837,  and  in  those 
of  Illinois,  of  1847  and  1862.     The  Maryland  Convention  of  1850  appointed 
Standing  Committees,  but  upon  whose  recommendation  does  not  appear. 


284  MODE   OF   PROCEEDING. 

The  persons  to  compose  the  Standing  Committees  are  usually 
designated  by  the  President  of  the  Convention. 

To  the  Standing  Committees,  thus  appointed,  the  part  of  the 
Constitution  they  are  severally  to  consider  is  apportioned  by  the 
Convention  either  in  the  original  resolution  appointing  them,  or 
by  special  motion  ordering  the  reference  to  be  made.  In  a  few 
instances  the  existing  Constitution  has  been  taken  up  and  read  in 
Convention,  section  by  section,  and  such  parts  as  were  deemed 
to  require  revision,  have  been  referred  to  the  appropriate  com 
mittees. 

§  297.  After  the  work  has  been  placed  thus  in  the  hands  of 
committees,  since  the  reports  expected  from  them  require  time 
for  their  preparation,  it  is  usual  for  the  Convention  to  occupy 
itself  in  the  interim,  whilst  the  committees  are  in  session,  in 
miscellaneous  business,  as  in  considering  cases  of  contested  elec 
tions,  or  in  discussing,  in  a  general  way,  resolutions  relating  to 
the  principles  to  be  embodied  in  the  new  Constitution.  Often, 
resolutions  of  the  latter  character  contain  instructions  to  the 
standing  committees,  now  in  session,  to  institute  inquiries  in 
reference  to  the  expediency  of  particular  amendments.  Usually, 
however,  until  the  reports  of  its  committees  begin  to  come  in, 
the  Convention  is  in  a  more  or  less  chaotic  condition,  proposing 
and  voting  upon  a  variety  of  resolutions  relating  to  reforms  con 
ceived  desirable,  or  to  modes  of  proceeding  imagined  to  be  more 
advantageous  than  those  adopted.  But  this  period  is  generally 
short,  for  the  reason,  that  reports  upon  parts  of  the  Constitution 
not  needing  much  change,  are  early  presented,  and  thus  the 
Convention  is  enabled  to  commence  its  work  without  delay. 

§  298.  The  mode  of  reporting  in  Conventions  is  different 
from  that  adopted  commonly  in  legislatures.  In  the  former, 
reports  of  committees  usually  consist  merely  of  articles  and 
sections,  drawn  up  in  the  precise  form  the  committees  propose 
they  shall  bear  as  parts  of  the  Constitution  ;  whilst  in  legisla 
tive  bodies  they  generally  comprise  discussions  of  facts  and 
principles,  intended  to  justify  particular  conclusions,  appended 
in  the  form  of  resolutions,  though  sometimes  to  those  abstract 
discussions,  instead  of  resolutions,  are  added  drafts  of  bills  pro 
posed  for  enactment.  Of  prefatory  argumentation,  the  reports 
made  to  Conventions  contain,  as  a  general  rule,  nothing  what 
ever.  In  about  one-third  of  the  cases,  instances  have  occurred 


REPORTS   OP   COMMITTEES.  285 

in  which  one  or  more  committees  have  accompanied  their  re 
ports  by  illustrative  argument  in  writing,  but  that  has  been 
confined  to  reports  upon  topics  of  unusual  importance  or  inter 
est.1  This  mode  of  reporting,  in  the  earlier  Conventions,  pur 
sued  without  rule  or  order  to  that  effect,  has  in  some  of  the 
later  ones  been  specially  required,  as  in  the  New  York  Conven 
tion  of  1846,  the  Illinois  Convention  of  1847,  the  Maryland 
Convention  of  1864,  and  perhaps  others.  The  earliest  instance 
I  have  found  in  which  the  subject  was  mentioned  was  in  the 
New  York  Convention  of  1821,  where  Gen.  Tallmadge,  chair- 
r^an  of  the  committee  on  the  Council  of  Revision,  on  present 
ing  a  report  from  his  committee,  stated  that  they  had  not  gone 
into  any  explanation  of  the  reasons  which  influenced  them  in 
making  the  report.  This,  he  admitted,  was  a  departure  from 
the  parliamentary  usage,  but  the  committee  had  done  it  not 
without  consideration  ;  "  they  had  omitted  to  do  this,  because, 
in  their  opinion,  the  Convention  might  be  induced  to  adopt  the 
amendment  for  different  views  from  those  assigned  by  the  com 
mittee.  The  reports  of  committees  would  remain  of  record, 
and  might  hereafter  be  used  to  give  a  false  and  imperfect  con 
struction  to  the  proceedings  of  the  Convention."  He  added, 
that  the  committee  "  hoped  it  would  be  considered  by  the  other 
committees  as  a  precedent."  2 

§  299.  In  the  case  mentioned  there  was  no  discussion,  and 
apparently  no  feeling  upon  the  subject.  Not  so  in  the  Conven 
tion  of  the  same  State  in  1846.  Early  in  the  session  a  resolu 
tion  was  introduced,  and,  without  much  discussion,  carried, 
declaring  it  to  be  "  inexpedient  for  the  several  committees  on  the 
Constitution  to  accompany  their  reports  with  written  explana 
tions  of  the  reasons  which  may  have  influenced  them  in  agree 
ing  thereto."  A  week  later,  a  motion  was  made  to  reconsider 
this  resolution,  which,  after  a  debate,  the  spirit  and  pertinacity 
of  which  it  is  difficult  to  understand,  was  negatived.  In  this 

1  Reports  without  written  or  other  illustration  were  made  in  the  following 
Conventions:    Massachusetts,   1779;  New  York,  1821   and  1846;    Louisiana, 
1844;  Illinois,  1847  and  1862;  California  and  Kentucky,  1849;  Ohio  and  In 
diana,  1850;  the  two  Minnesota  and  the  Iowa  Conventions,  1857.     In  the  fol 
lowing  Conventions  written  arguments  or  illustrations  in  a  few  cases  accompa 
nied  reports:   Massachusetts,   1820   and  1853;   Pennsylvania,  1837;  Virginia, 
1829;  Wisconsin,  1847;  Michigan  and  Maryland,  1850;  and  Louisiana,  1852. 

2  Deb.  N.  Y.  Conv.  1821,  p.  42. 


286  REPORTS   OP   COMMITTEES. 

discussion,  in  addition  to  the  reason  for  the  restriction  given  by 
Gen.  Tallraadge,  it  was  urged,  that  if  all  the  reports  were  ac- 
accompanied  by  statements  of  the  reasons  which  induced  the 
committees  to  adopt  them,  the  records  of  the  Convention  would 
become  excessively  voluminous ;  that  if  not  so  much  so  as  to 
cause  them  to  be  wholly  neglected,  of  which  there  was  danger, 
they  would  be  likely  to  be  consulted  mainly  for  the  sake  of  the 
reports  which  would  thus  have  imparted  to  them  too  powerful 
an  influence;  that  the  committees  being  composed  of  leading 
members,  likely  to  be  most  eminent  in  debate,  to  allow  them  to 
express  their  reasons  in  writing  would  be  to  commit  them  to 
the  opinions  advanced,  and  for  the  reasons  therein  mentioned, 
and  that  it  would  be  nearly  impossible  for  the  Convention  to 
convince  or  to  refute  them  ;  so  that,  in  truth,  it  was  not  a  ques 
tion  of  gagging  the  committees  so  much  as  whether  the  com 
mittees  should  be  allowed  to  gag  the  Convention ;  that  the  true 
course  was,  to  let  the  members  of  the  committees  stand  on  the 
same  footing  as  the  other  members  of  the  Convention,  each 
giving  his  opinion  orally  in  debate ;  that  thus,  the  remarks  of 
all  being  reported  with  proportionate  abbreviation,  each  would 
secure  for  his  views  the  public  estimation  which  they  deserved, 
and  no  more. 

§  300.  Against  the  restriction  it  was  urged,  that  the  work  of 
a  Convention  was  unlike  that  of  a  legislature  ;  that  it  was  to 
go  before  the  people  in  the  shape  of  recommendations,  to  be 
by  them  either  adopted  or  rejected ;  that,  therefore,  the  people 
ought  to  know  the  grounds  on  which  they  had  been  made  ;  that 
those  would  be  best  determined  from  perusing  the  carefully 
drawn  reports  of  committees,  giving  to  the  subjects  committed 
to  them  calm  and  mature  consideration  ;  that  such  had  ever 
been  the  parliamentary  course,  and,  besides,  it  would  be  ab 
surd  to  appoint  committees  to  report  conclusions,  and  to  sup 
press  the  information  —  often  consisting  of  statistics,  or  scien 
tific  or  historical  data  —  upon  which  they  were  based  ;  that,  in 
regard  to  the  Convention  itself,  it  was  idle  to  talk  of  the  exces 
sive  influence  of  committees,  they,  as  a  general  thing,  having 
no  influence  which  they  do  not  deserve  to  have  ;  that  there  was 
no  danger  of  their  abusing  the  privilege  proposed  to  be  denied 
them  of  expressing  in  writing  their  reasons  for  their  recommend 
ations;  that  the  natural  indolence  of  every  man  would  lead  him 


REPORTS   OF    COMMITTEES.  287 

to  avoid  the  task,  always  irksome,  of  drawing  up  long  written 
reports,  and  to  rely  for  explanations  of  his  views,  except  in  rare 
and  important  cases,  upon  speaking  rather  than  writing ;  that 
when  cases  of  real  importance  arose,  it  was  for  the  interest  no 
less  of  the  Convention  than  of  the  committees,  to  arrive  at 
clear  and  definite  ideas  in  the  shortest  time  possible,  upon  the 
subjects  in  hand ;  that  to  this  end  it  was  highly  desirable  that 
committees  should  be  allowed  and  encouraged  to  present  their 
views  in  writing,  in  order  that  the  members  might  take  the 
reports  with  them  to  their  rooms  and  examine  them  without  the 
distraction  of  mind  so  inevitable  in  the  Convention  itself ;  and, 
finally,  that  by  allowing  written  reports,  many  members  who 
had  no  skill  in  debate,  but  who  could  wield  their  pen  with  real 
ability,  would  be  able  to  make  to  the  public  counsels  valuable 
contributions.1 

§  301.  Without  stopping  to  consider  particularly  the  argu 
ments  above  detailed,  it  is  proper  to  say,  that  the  true  course 
seems  to  be  that  pursued  by  most  Conventions,  and  recom 
mended  by  Gen.  Tallmadge  in  the  New  York  Conventions  of 
1821  and  1846,  to  leave  the  matter  of  reporting  their  reasons  in 
writing,  or  not,  to  the  committees  themselves,  without  any  rule 
to  fetter  their  discretion.  Thus  left,  it  is  probable,  in  a  majority 
of  cases,  committees  would  prefer  to  report  merely  articles  and 
sections,  trusting  to  debate  to  illustrate  and  enforce  their  recom 
mendations.  When  a  case,  however,  arises,  in  which,  from  the 
abundance  or  complexity  of  the  data  on  which  the  conclusions 
of  the  reports  are  founded,  and  by  which,  if  at  all,  they  are  to 
be  justified,  it  is  deemed  important  that  those  data  should  be 
marshalled  in  a  succinct  and  orderly  array,  it  will  be  an  act  of 
folly  to  interdict  it,  since  only  when  thus  presented  can  they  be 
grasped  and  appreciated.2 

§  302.  On  the  coming  in  of  the  reports  of  committees,  the 
first  proceeding  commonly  is  to  lay  them  on  the  table  and  order 
them  printed,  preparatory  to  their  being  submitted  to  the  action 
of  the  Convention.  In  some  cases  this  preliminary  is  dispensed 

1  See  Deb.  N.  Y.  Conv.  1846,  pp.  97-99,  131-138,  142-149. 

2  An  article  in  the  Democratic  Review  for  November,   1846,  p.  340,  refer 
ring  to  the  New  York  Convention  of  that  year,  impeaches  the  motives  of  those 
who  concurred  in  defending  this  restriction,  declaring  them,  under  the  circum 
stances  under  which  the  proposition  was  initiated,  to  have  been  "  discreditable 
in  the  highest  degree."     What  those  circumstances  were  I  am  not  informed. 


288  REPORTS   OF   COMMITTEES. 

with,  and  the  reports  are  at  once  referred  for  consideration  and 
discussion  to  a  committee  of  the  whole.  This  reference,  either 
at  this  or  at  a  later  stage,  after  the  reports  have  been  printed,  is 
nearly  universal,  there  being  in  all  the  Conventions 'whose  jour 
nals  or  proceedings  are  known  to  me  only  two  or  three  excep 
tions  to  it.  In  those  cases,  the  reports  were  taken  up  directly 
in  Convention,  and  put  on  the  way  to  final  passage,  without 
referring  them  to  a  committee  of  the  whole.  When  so  referred, 
after  full  and  often  very  extended  discussion  in  that  committee, 
the  reports,  as  amended  by  it,  are  passed  through  their  several 
stages  to  final  adoption,  as  in  case  of  other  laws,  by  the  Con 
vention  itself. 

§  303.  Before  the  scattered  reports  of  the  standing  commit 
tees,  amended  by  the  committee  of  the  whole,  and  afterwards 
by  the  Convention,  are  put  upon  their  final  passage,  it  is  usual 
to  refer  them  to  a  committee  of  revision,  or  on  phraseology  and 
arrangement,  whose  duty  it  is  to  file  them  down  to  uniformity 
of  style,  and  establish  the  proper  locus  of  each  section  in  the 
Constitution.  A  committee  charged  with  this  duty  is  some 
times  appointed  among  the  standing  committees,  and  sometimes 
is  raised  toward  the  close  of  the  session,  when  the  occasion  for 
its  services  arises.  It  has  been  usual  to  regard  this  committee 
as  of  very  slight  consequence,  as  though  its  operation  could 
only  be  to  add  to  the  poh'sh  of  the  instrument,  or  to  the  perfec 
tion  of  its  logical  arrangement,  but  I  am  persuaded  the  idea  is 
a  mistaken  one.  It  is  always  in  the  power  of  such  a  commit 
tee  —  perhaps  I  might  say  it  is  liable,  even  without  intending 
it,  in  the  process  of  manipulating  a  Constitution  for  the  purpose 
indicated  —  to  change  its  language  so  as  materially  to  alter  its 
legal  effect.  In  the  hurry  of  its  final  passage,  such  a  change 
would  be  apt,  unless  very  conspicuous,  to  escape  detection.  It 
is  said,  I  think  by  Mr.  Jefferson,  that  Gouverneur  Morris,  to 
whom  the  duty  of  revising  the  style  of  the  Federal  Constitution 
was  intrusted,  in  performing  it,  insensibly  gave  a  cast  to  that 
instrument  which  it  did  not  bear  when  it  passed  into  his  hands, 
and  that  the  Convention  did  not  discover  the  change.  The 
same  thing,  as  I  am  informed,  occurred  in  the  case  of  the  first 
Constitution  of  Michigan,  in  which  very  important  changes 
were  effected,  perhaps  unintentionally,  in  the  manner  I  have 
indicated. 


FINAL    REVISION. — SIGNING   THE   CONSTITUTION.  289 

§  304.  The  Constitution,  coming  from  the  hands  of  the  com 
mittee  of  revision,  and  being  adopted  as  a  whole,  it  is  usual  for 
the  entire  body  of  the  delegates,  beginning  with  their  president, 
to  subscribe  their  names  to  it,  in  attestation  of  its  genuineness. 
In  a  few  instances  it  has  been  signed  by  the  president  and  sec 
retary  only,  and  in  a  few  others  by  such  members  only  as  voted 
for  it  upon  its  final  passage.  It  is  not  apparent  why  members 
should  ever  refuse  to  subscribe  to  the  Constitution  which  has 
been  matured  by  the  Convention,  if  the  act  be  construed,  as  I 
think  it  should  be,  as  an  act  of  attestation,  and  not  as  a  decla 
ration  of  approval. 

19 


CHAPTER  VI. 

§  305.  WE  approach  now  by  far  the  most  important  question 
relating  to  Conventions,  namely,  What  are  their  powers  ? 

It  is  hardly  necessary  to  apprise  the  reader  that,  by  the  term 
power,  as  applied  to  an  institution  charged  with  governmental 
functions,  is  meant  not  physical  ability,  but  legal  ability,  or 
that  moral  competence  which  Burke  describes  as  "  subjecting, 
even  in  powers  more  indisputably  sovereign,  occasional  will  to 
permanent  reason,  and  to  the  steady  maxims  of  faith,  justice, 
and  fixed  fundamental  policy."  l  In  language  more  familiar  to 
ears  trained  in  our  constitutional  schools,  it  means  competence 
by  law  or  by  the  principles  of  our  political  Constitution.  What 
a  Convention  can  do  legally,  that  is,  by  the  express  provisions 
of  some  law,  or  what,  in  the  absence  of  such  a  law,  it  can  do 
consistently  with  the  principles  of  our  Constitutions,  among 
which  are  to  be  reckoned  its  own,  it  has,  in  general,  power  to  do, 
and  nothing  further. 

§  306.  The  general  conception  of  a  Convention  is,  that  it  is  a 
body  of  delegates,  chosen  by  the  electors  of  a  State,  to  perform 
certain  legislative  duties  connected  with  the  enactment  of  the 
fundamental  law.  The  extent  of  those  duties,  whether  it  be  to 
frame,  establish,  and  put  in  operation  that  law,  or  only  to  take 
certain  steps  toward  its  establishment,  leaving  others  to  be 
taken  by  other  agencies,  is  mainly  the  question  we  are  to  deter 
mine.  In  the  general  definition  of  a  Convention,  just  given,  the 
term  "  delegates  "  is  used  advisedly,  and  is  intended  to  be  taken 
in  its  legal  sense,  as  distinguished  from  the  word  "representa 
tives,"  which  is  defined  by  Lord  Brougham  to  be  a  body  of  per 
sons,  chosen  by  the  people,  to  whom  the  power  of  the  people  is 
parted  with,  and  who  perform  that  part  in  the  government 
which,  but  for  this  transfer,  would  have  been  performed  by  the 
people  themselves.2 

1  Reflections  on  the  Revolution  in  France. 

2  Political  Philos.,  Vol.  III.  ch.  vi.  p.  33. 


TWO   THEORIES   OP   CONVENTIONAL    POWER.  291 

§  307.  Two  widely  different  theories  of  this  important  insti 
tution,  from  which  have  been  derived  divergent  conceptions  of 
its  powers,  have  of  late  years  been  in  vogue. 

First.  One  theory  is,  that  the  Convention  is  a  strictly  repre 
sentative  body,  acting  for  and  in  the  name  of  the  sovereign, 
and  possessed,  by  actual  transfer,  of  all  the  powers  inherent  in 
that  sovereign,  limited,  however,  in  the  case  of  Conventions  in 
the  several  States,  by  the  Constitution  of  the  United  States ; 
that  it  is  "  a  virtual  assemblage  of  the  people,"  of  whom,  by 
reason  of  their  great  numbers  and  remoteness  from  each  other, 
an  actual  assemblage,  imagined  by  political  speculatists,  is  im 
possible,  —  the  most  that  can  be  effected  being  a  gathering 
together  in  convenient  numbers  of  deputies,  empowered  to  repre 
sent  the  people,  and  clothed  with  all  the  power  the  sovereign 
itself  would  have  were  it  assembled  en  masse. 

Secondly.  The  second  theory  is,  that  the  Convention  is  a  col 
lection  of  delegates  appointed  by  the  sovereign,  through  the 
agency  of  one  or  more  branches  of  the  existing  government,  to 
perform  certain  determinate  duties  in  relation  to  the  formation 
or  revision  of  the  fundamental  law ;  what  those  duties  are,  de 
pending  upon  the  tenor  of  the  commission  under  which  it  con 
venes,  or,  when  that  is  silent,  upon  sound  constitutional  prin 
ciples  and  precedents.  According  to  this  theory,  the  members 
of  a  Convention  are  not,  accurately  speaking,  representatives, 
but  delegates;  and  it  is  their  function,  not  to  enact,  but  simply 
to  recommend,  constitutional  changes,  —  unless,  indeed,  as  is 
sometimes  the  case,  the  warrant  for  their  assembling  should 
contain  authority  to  act  definitively,  in  which  case  their  power 
would,  perhaps,  be  coextensive  with  the  terms  of  the  grant.  In 
other  words,  in  its  last  analysis,  a  Convention,  according  to  this 
second  theory,  is  a  mere  committee,  sitting  for  a  specified  pur 
pose,  under  the  express  mandate  of  the  sovereign,  and  possessed 
of  such  powers  only  as  are  expressly  granted,  or  as  are  necessary 
and  proper  for  the  execution  of  powers  expressly  granted.  This 
theory  evidently  discards  the  notion,  so  much  cherished  by  the 
advocates  of  the  former,  that  the  Convention  is  clothed  with 
sovereign  attributes,  though  doubtless  intrusted  to  some  extent, 
under  strict  regulations,  intended  to  secure  responsibility,  with 
their  exercise. 

§  308.  As  I  am  unwilling  to  misstate  the  two  theories,  above 


292      CASES   IN   WHICH   THE    FIRST   THEORY   HAS   BEEN   ASSERTED. 

propounded,  I  extract  from  the  debates  of  our  Conventions,  or 
from  the  writings  of  our  public  men,  passages  in  which  the  one 
or  the  other  has,  more  or  less  completely,  been  maintained. 

Thus,  in  the  Illinois  Convention  of  1847,  Mr.  Peters  said :  — 
"  He  had  and  would  continue  to  vote  against  any  and  every 
proposition  which  would  recognize  any  restriction  of  the  powers 
of  this  Convention."  "  We  are,"  he  continued,  "  the  sovereignty 
of  the  State.  We  are  what  the  people  of  the  State  would  be, 
if  they  were  congregated  here  in  one  mass-meeting.  We  are 
what  Louis  XIV.  said  he  was, '  We  are  the  State.'  We  can 
trample  the  Constitution  under  our  feet  as  waste  paper,  and  no 
one  can  call  us  to  account  save  the  people."  1 

So  the  Hon.  George  M.  Dallas,  in  a  letter  published  in  "  The 
Pennsylvanian "  of  Sept.  5,  1836,  said  :  —  "A  Convention  is 
the  provided  machinery  of  peaceful  revolution.  It  is  the  civil 
ized  substitute  for  intestine  war When  ours  shall  assem 
ble,  it  will  possess,  within  the  territory  of  Pennsylvania,  every 
attribute  of  absolute  sovereignty,  except  such  as  may  have  been 
yielded  and  are  embodied  in  the  Constitution  of  the  United 
States.  What  may  it  not  do  ?  It  may  reorganize  our  entire 
system  of  social  existence,  terminating  and  proscribing  what  is 
deemed  injurious,  and  establishing  what  is  preferred.  It  might 
restore  the  institution  of  slavery  among  us ;  it  might  make  our 
penal  code  as  bloody  as  that  of  Draco ;  it  might  withdraw  the 
charters  of  the  cities ;  it  might  supersede  a  standing  judiciary 
by  a  scheme  of  occasional  arbitration  and  umpirage ;  it  might 
prohibit  particular  professions  or  trades ;  it  might  permanently 
suspend  the  privilege  of  the  writ  of  Habeas  Corpus,  and  take 
from  us  ....  the  trial  by  jury.  These  are  fearful  matters,  of 
which  intelligent  and  virtuous  freemen  can  never  be  guilty,  and 
I  mention  them  merely  as  illustrations  of  the  inherent  and  almost 
boundless  power  of  a  Convention."  2 

But  two  further  extracts  will  be  given  upon  this  side  of  the 
question,  taken  from  the  proceedings  of  the  Illinois  Convention 
of  1862.  A  committee,  composed  of  some  of  the  leading  jur 
ists  in  that  body,  in  a  report  upon  the  subject  of  electing  a 

1  State  Register  of  June  10,  1847. 

2  To  a  similar  effect,  are  remarks  of  Mr.  Mitchell,  in  the  Kentucky  Conven 
tion  of  1849,  Deb.  Ky.  Conv.  1849,  p.  863  ;  also  of  B.  F.  Butler  in  the  Massa 
chusetts  Convention  of  1853,  Deb.  Mass.  Conv.  1853,  Vol.  I.  pp.  78,  97. 


CASES   IN   WHICH   THE   SECOND   THEORY   HAS   BEEN   ASSERTED.     293 

printer,  said :  —  "  When  the  people,  therefore,  have  elected  dele 
gates,  ....  and  they  have  assembled  and  organized,  then  a 
peaceable  revolution  of  the  State  government,  so  far  as  the 
same  may  be  effected  by  amendments  of  the  Constitution,  has 
been  entered  upon,  limited  only  by  the  Federal  Constitution. 
All  power  incident  to  the  great  object  of  the  Convention  be 
longs  to  it.  It  is  a  virtual  assemblage  of  the  people  of  the 
State,  sovereign  within  its  boundaries,  as  to  all  matters  con 
nected  with  the  happiness,  prosperity,  and  freedom  of  the  citi 
zens,  and  supreme  in  the  exercise  of  all  power  necessary  to  the 
establishment  of  a  free  constitutional  government,  except  as 
restrained  by  the  Constitution  of  the  United  States."  l  In  a 
speech  in  the  same  body,  General  Singleton  said  :  —  "  Sir,  that 
this  Convention  of  the  people  is  sovereign,  possessed  of  sov 
ereign  power,  is  as  true  as  any  proposition  can  be.  If  the 
State  is  sovereign  the  Convention  is  sovereign.  If  this  Conven 
tion  here  does  not  represent  the  power  of  the  people,  where  can 
you  find  its  representative  ?  If  sovereign  power  does  not  reside 
in  this  body,  there  is  no  such  thing  as  sovereignty."  2 

§  309.  On  the  other  hand,  the  theory  which  regards  Conven 
tions  as  advisory  bodies  simply,  with  limited  powers,  has  been 
broached  in  equally  explicit  terms.  The  earliest  case  in  which 
the  powers  of  such  bodies  were  brought  into  discussion,  was 
that  of  the  Federal  Convention  of  1787.  The  credentials  of  the 
delegates  to  that  body,  as  is  well  known,  contemplated  only  a 
revision  of  the  Confederation,  leaving  it  still  a  mere  confederate 
system.  On  assembling,  however,  those  delegates  were  gener 
ally  satisfied,  that  any  government,  formed  by  patching  up  the 
old  Confederation,  would  be  wholly  inadequate,  and  that  what 
was  wanted  was  a  firm  national  government.  But  then  arose 
the  embarrassing  question,  was  it  competent  for  that  body  to 
disregard  its  instructions  and  frame  such  a  system  as  it  deemed 
absolutely  necessary  for  the  salvation  of  the  country  ?  The  an 
swer  given  to  this  question  marks,  indisputably,  the  sense  of  the 
statesmen  of  the  Revolution  as  to  the  real  nature  of  the  Con 
vention.  Their  answer  was,  in  substance,  that  by  strict  law  the 
Convention  had  no  power  nor  right  to  disregard  the  instructions 
of  the  legislative  Assemblies  by  which  they  were  deputed,  on 

1  Illinois  State  Register  of  Jan.  10,  1862. 

2  Id.  of  Jan.  17,  1862. 


294    CASES   IN   WHICH   THE   SECOND    THEORY   HAS   BEEN    ASSERTED. 

whose  call  they  had  assembled  ;  but  that,  under  the  controlling 
necessities  of  the  times,  they  would  venture  to  disregard  those 
f  instructions,  since,  after  all,  the  power  of  ultimate  decision  was 
j  to  be  in  the  people,  the  Convention  having  authority  only  to 
recommend,  not  to  act  definitively.    Thus,  Mr.  Wilson,  of  Penn- 
^sylvania,  one  of  the   profoundest  jurists  our  country  has  ever 
produced,  said :  —  "  With  regard  to  the  power  of  the  Conven 
tion,  he  conceived  himself  authorized  to  conclude  nothing,  but 
v,  to  be  at  liberty  to  propose  any  thing."  1^So,Gpvernor  Randolph, 
of  Virginia,  referring  to  his  own  plan  of  a  national  government, 
which  was  afterwards  made  the  basis  of  the  Constitution,  as 
adopted,  said :  "  The  resolutions  from  Virginia  must  have  been 
adopted  on  the  supposition  that  a  federal  government  was  im 
practicable.     And  it  is  said,  that  power  is  wanting  to  institute 
such  a  government ;  but  when  our  all  is  at  stake,  I  will  consent 

to  any  mode  that  will  preserve  us Besides,  our  business 

consists  in  recommending  a  system  of  government,  not  in  mak 
ing  it." 2  Mr.  Madison,  also,  contrasting  the  plan  of  Mr.  Ran 
dolph  with  the  federal  plan  introduced  by  Mr.  Paterson,  of  New 
Jersey,  said :  "  The  principal  objections  against  that  of  Mr. 
Randolph  were  the  want  of  power,  and  the  want  of  practica 
bility.  There  can  be  no  weight  in  the  first,  as  the  fiat  is  not  to 
be  here,  but  in  the  people." 3  In  this  most  important  Conven 
tion,  then,  of  which  most  of  the  founders  of  our  institutions  were 
members,  the  power  proper  only  for  a  sovereign,  of  definitive 
legislation,  was  not  only  not  claimed  for  that  body,  but  it  was 
expressly  disclaimed. 

§  310.  Similar  views  have  been  expressed  by  members  of  later 
Conventions.  In  the  Virginia  Convention  of  1829,  John  Ran 
dolph  said  :  "  Sir,  we  have  been  called  as  counsel  to  the  people 
—  as  State  physicians  to  propose  remedies  for  the  State's  dis 
eases,  not  to  pass  any  Act  which  shall  have  in  itself  any  binding 
force.  We  are  here  as  humble  advisers  and  proposers  to  the 
people."  4  In  the  Illinois  Convention  of  1847,  a  resolution  was 
introduced  by  Mr.  Singleton,  containing  his  views  of  the  powers 
and  duties  of  that  body,  as  follows :  — "Resolved,  that  this  Con 
vention  is  limited  in  its  purposes  and  powers;  its  object  being 
to  propose,  for  the  acceptance  of  the  people,  such  changes  in 

i  Elliott's  Deb.,  Vol.  V.  p.  196.  2  Elliott's  Deb.,  Vol.  I.  p.  416. 

3  Id.  Vol.  V.  p.  216.  <  Deb.  Va.  Conv.  1829,  p.  868. 


THEORY   OP   CONVENTIONAL   SOVEREIGNTY   A   NOVELTY.        295 

their  present  Constitution  as  to  the  Convention  may  appear 
necessary,  limited,  in  these  changes,  by  the  true  principles  of  a 
republican  government,  and,  in  the  conduct  of  its  body,  by  the 
Constitution  of  this  State,  as  far  as  it  is  applicable.  That  this 
Convention  has  no  power  to  repeal  or  modify  any  Act  of  the 
General  Assembly  of  this  State,  otherwise  than  by  constitutional 
provision,  subject  to  the  ratification  of  the  people,  or  do  any 
other  act  not  necessary  to  the  discharge  of  the  trust  confided  to 
it."1  Upon  this  resolution  an  animated  debate  arose,  in  the 
course  of  which  the  two  theories  of  the  Convention  I  have  ex 
plained  were  distinctly  propounded  ;  the  most  outspoken  and 
extravagant  assertion  of  sovereign  powers  for  the  Convention 
being  that  made  by  Mr.  Peters  in  the  terms  quoted  in  a  preced 
ing  section.  The  result  of  the  debate  was,  the  adoption  of  a 
mild  resolution  which  avoided  the  disputed  points,  as  a  substi 
tute  for  the  foregoing  one,  by  a  vote  of  87  to  64.  Other  extracts 
might  be  added,  from  the  debates  of  other  Conventions,  and 
particularly  that  held  in  Illinois  in  1862,  in  which  the  two  theo 
ries  of  the  powers  of  those  bodies  were  elaborately  discussed. 
Enough,  however,  has  been  given,  to  answer  my  purpose,  which 
is  simply  to  illustrate,  by  actual  examples,  the  scope  and  tenor 
of  the  divergent  theories  entertained  on  the  subject. 

§  311.  Of  these  two  theories,  it  is  important  now  to  note,  that 
the  first,  which  attributes  to  the  Convention  powers  amounting 
sometimes  —  the  State  alone  considered,  in  which  the  body 
meets — to  absolute  sovereignty,  is  of  modern  origin.  A  care 
ful  search  amongst  the  records  of  our  Conventions  reveals  no 
trace  of  it  earlier  than  the  New  York  Convention  of  1821.  In 
1829,  it  again  made  its  appearance  in  the  Virginia  Convention, 
but  obscurely  and  hesitatingly.  A  question  arose  as  to  the  power 
of  that  Convention  to  disregard  positive  instructions  of  the  leg 
islature  relative  to  the  submission  of  the  fruit  of  its  labors  to  the 
people,  in  the  discussion  of  which,  doctrines  were  propounded 
which  afterwards  ripened  into  the  theory  in  question.  The  next 
appearance  was  in  the  letter  of  Mr.  Dallas,  from  which  an  ex 
tract  has  been  given  above,  and  in  the  Convention  held  in  Penn 
sylvania  in  the  following  year  —  the  latter  the  fruit  of  the  seed 
sown  by  that  gentleman.  The  theory,  however,  was  but  par 
tially  propounded  in  the  Convention,  traces  of  it  lurking  in  a 
1  Journal  Illinois  Cony.,  1847,  p.  13. 


296   THEORY  OF  CONVENTIONAL  SOVEREIGNTY  A  NOVELTY. 

scarcely  recognizable  form  in  certain  assertions  of  power,  made 
for  particular  purposes.  The  boldness  of  the  position  taken  by 
Mr.  Dallas  had  excited  opposition  in  the  State,  and  caution  was 
necessary.  In  the  struggles  preceding  the  meeting  of  that  Con 
vention,  the  advocates  of  reform  had  succeeded  in  inducing  the 
legislature  to  call  the  body,  but  subject  to  stringent  limitations, 
in  regard  to  the  submission  of  its  amendments  to  the  people. 
On  assembling,  a  discussion  arose  between  the  advocates  and 
opponents  of  reform  as  to  the  extent  and  nature  of  the  powers 
of  the  Convention,  thus  limited ;  whether  it  was  or  was  not  re 
stricted  to  submitting  amendments,  or  whether  it  might  not,  on 
the  one  hand,  frame  a  new  Constitution,  or,  on  the  other,  adjourn 
without  proposing  any  change  whatever.  During  this  discus 
sion,  opinions  were  occasionally  expressed,  which  indicated  that 
the  theory  of  conventional  sovereignty  had  been  making  progress 
since  its  first  appearance  in  New  York  a  few  years  before. 

Ten  years  afterwards,  this  theory  was  enunciated,  in  the  terms 
we  have  seen  above,  by  Mr.  Peters,  in  the  Illinois  Convention 
of  1847.1  In  1849,  it  made  its  appearance  in  the  Kentucky  Con 
vention,  and  four  years  later,  in  that  of  Massachusetts,  under 
the  patronage  of  Messrs.  Hallett  and  Butler.  In  1860-1861,  it 
produced  its  legitimate  fruits  in  the  so-called  secession  of  the 
eleven  slave-holding  States  from  the  Union,  a  movement  ma 
tured  and  consummated  by  its  aid ;  and  finally,  in  1862,  its 
echo  was  heard  in  the  free  State  of  Illinois,  whose  Convention 
unwisely  seized  upon  a  time  of  national  peril  to  endorse  a  dis 
organizing  dogma,  in  the  general  adoption  of  which  at  the  South 
that  peril  had  originated."  2 

1  Ante,  §  308. 

2  The  notions  entertained  in  the  seceding  States,  as  to  the  powers  of  Conven 
tions,  may  be  inferred  from  the  following  extract  from  a  speech  made  by  the 
Hon.  AVilliam  L.  Yancey,  in  the  Alabama  Convention  of  1861.     The  question 
being  on  the  submission  of  the  Ordinance  of  Secession  to  the  people,  that  gen 
tleman  said :  — 

"  This  proposition  is  based  upon  the  idea,  that  there  is  a  difference  between 
the  people  and  the  delegate.  It  seems  to  me  that  this  is  an  error.  There  is  a 
difference  between  the  representatives  of  the  people  in  the  law-making  body, 
and  the  people  themselves,  because  there  are  powers  reserved  to  the  people  by 
the  Convention  of  Alabama,  and  which  the  General  Assembly  cannot  exercise. 
But  in  this  body  is  all  power  —  no  powers  are  reserved  from  it.  The  people 
are  here  in  the  persons  of  their  deputies.  Life,  Liberty,  and  Property  are  in 
our  hands.  Look  to  the  Ordinance  adopting  the  Constitution  of  Alabama.  It 


THEORY   OF    CONVENTIONAL   SOVEREIGNTY   A   NOVELTY.       297 

§  312.  Such  has  been  the  career  of  this  famous  political  dogma, 
as  exhibited  in  Conventions  recognized  by  their  respective  States 
as  legitimate.  In  the  mean  time,  in  Maryland,  in  1837,  coupled 
with  the  heresy  that  a  mere  majority  in  numbers  of  the  adult 
male  citizens,  without  regard  to  legal  provisions,  can  at  any  time 
call  a  Convention  to  alter  or  abolish  the  Constitution,  it  came 
near  flaming  into  actual  revolution  —  a  call  for  a  Convention 
being  issued  by  private  individuals,  who  only  desisted  from  their 
illegal  purpose,  upon  the  appearance  of  a  proclamation  of  the 
Governor  denouncing  it  as  treasonable.  Five  years  later  the 
same  doctrines  ripened  and  produced  their  legitimate  fruits  in 
Rhode  Island,  in  the  Dorr  rebellion,  of  which  a  history  was  given 
in  a  preceding  chapter.  In  that  State,  a  Convention,  called  by 
unofficial  persons,  and  claiming  to  represent  the  people  of  Rhode 
Island,  because  deputed  by  a  majority  of  all  the  male  citizens 
of  twenty-one  years  of  age,  resident  in  the  State,  though  not 
by  a  majority  of  the  legal  voters  at  a  regular  election,  framed  a 
Constitution,  and  attempted  by  force  of  arms  to  maintain  it  as 
the  legitimate  Constitution  of  the  State. 

In  these  proceedings,  the  alarming  position  was  taken,  that 
not  only  could  a  Convention  be  got  together  in  defiance  of  the 
existing  government,  but,  when  assembled,  it  could  remodel  that 
government,  —  eject  from  office  those  charged  with  its  adminis 
tration,  without  their  consent  or  that  of  the  electoral  body,  on 
which  the  whole  political  structure  was  immediately  bottomed. 
Such  was  the  first  conspicuous  practical  application  of  the  theory 
of  conventional  sovereignty.  The  second  has  been  already  re 
ferred  to,  as  exhibited  on  a  more  imposing  scale,  in  1860-1861, 
when  eleven  States  sought,  under  its  inspiration,  to  break  in 
pieces  the  temple  of  the  Union.1 

states,  « We,  the  people  of  Alabama,'  &c.,  &c.  All  our  acts  are  supreme,  without 
ratification,  because  they  are  the  acts  of  the  people  acting  in  their  sovereign 
capacity."  —  Hist.  §•  Deb.  Ala.  Conv.  1861,  p.  114. 

1  Comparing  the  dates  of  the  various  Conventions,  in  which  the  theory  of 
conventional  sovereignty  has  been  propounded,  with  those  of  the  successive  tides 
of  pro-slavery  fanaticism  in  the  United  States,  it  is  difficult  to  resist  the  convic 
tion,  that  the  assertion  of  that  theory  was  connected  with  the  great  conspiracy 
which  culminated  in  the  late  Secession  war.  Was  it  foreseen,  that  to  carry  out 
the  design  of  disrupting  the  Union,  with  an  appearance  of  constitutional  right, 
new  conceptions  must  become  prevalent,  as  to  the  powers  of  the  bodies  by  which 
alone  the  design  could  be  accomplished  ?  And  conceding  the  existence  of  such 


298       ARE   CONVENTIONS   POSSESSED    OF   SOVEREIGN   POWERS? 

§  313.  Admitting,  however,  that  the  theory  in  question  is  a 
novelty,  it  is  not  always  true,  especially  in  politics,  that  "  what 
ever  is  new  is  false,"  and  it  is  therefore  fairly  incumbent  on 
those  who  reprobate  that  theory,  not  alone  to  denounce  it  as 
novel,  or  to  array  against  it  the  invectives  of  its  opponents,  but 
to  refute  it.  This,  it  is  my  hope,  in  what  follows,  to  be  able  to 
do.  The  refutation,  however,  will  be  much  of  it  inferential, 
depending  on  the  consideration  not  only  of  general  principles, 
but  of  particular  questions,  relating  to  the  power  of  Conventions 
in  special  cases,  which  either  have  actually  arisen  or  are  likely 
any  day  to  arise. 

§  314.  The  powers  of  Conventions,  including  in  that  term 
both  positive  and  negative  powers,  that  is,  both  powers  and 
disabilities,  may  be  most  conveniently  discussed  by  considering 
them  with  reference, 

I.  To  the  external   relations  of  those  bodies  ;  that  is,  their 
relations  to  the  political  society  in  which  they  are  assembled  ; 
or,  more  particularly,  — 

(a).  To  the  sovereign,  or  to  the  rights  of  sovereignty. 

(b).  To  the  government  of  the   state,  as  a  whole. 

(c).  To  the  electors,  or  most  numerous  branch  of  the  govern 
ment. 

(d).  To  the  three  great  departments  of  administration,  —  leg 
islative,  executive,  and  judicial ;  —  and 

II.  To   their  internal    relations  —  to   the    perfecting  of  their 
organization,  to  the  maintenance  of  discipline  over  their  own 
members  or  over  strangers,  and  to  the  prolongation  or  perpetu 
ation  of  their  existence. 

To  this  discussion  will  be  devoted  the  remainder  of  this  chap 
ter. 

§  315.  (a).  The  powers  of  Conventions,  considered  with  ref 
erence  to  the  sovereign,  or  to  sovereignty,  may  be  best  exhibited 
by  answering  this  question  :  Are  Conventions  possessed  to  any, 
and  what,  extent  of  sovereign  powers  ?  If  a  Convention  is  pos- 

a  conspiracy,  to  be  carried  through  by  such  means,  were  the  eminent  names 
cited  above  the  willing  tools  or  the  dupes  of  the  far-seeing  traitors  who  hatched  it  ? 
Even  in  the  case  of  Mr.  Livingston,  who  broached  the  theory  in  the  New  York 
Convention  of  1821  (see  Deb.  N.  Y.  Cony.  1821,  p.  199)  the  imputation  of  pro- 
slavery  fanaticism  would  seem  not  entirely  unjust.  The  purpose  of  Mr.  L.  in 
propounding  the  theory  was  to  satisfy  the  Convention  of  its  power  to  abridge 
the  right  of  suffrage  accorded  by  existing  laws  to  the  free  blacks  of  New  York. 


ARE  CONVENTIONS  POSSESSED   OF   SOVEREIGN   POWERS?       299 

sessed  of  sovereign  powers,  it  must  be  either,  first,  because, 
while  its  members  have  no  individual  or  personal  sovereignty, 
the  body  has  received  sovereign  powers,  by  actual  transfer  from 
their  original  source,  the  sovereign,  and  holds  them  absolutely, 
by  right  of  representation  ;  or,  secondly,  because  its  members, 
in  common  with  all  the  citizens,  or,  at  least,  with  all  the  electors, 
are  possessed  of  individual  or  personal  sovereignty,  and,  accord 
ingly,  when  assembled  in  Convention,  wield  sovereign  powers 
absolutely,  both  in  their  own  right  and  in  that  of  their  co-sover 
eigns,  outside  of  the  body,  whom  they  represent.  Of  these  two 
alternatives,  the  first  supposes  sovereignty  to  be  alienable,  which, 
in  a  former  chapter,1  we  have  seen  to  be  incompatible  with  its 
nature.  Sovereignty  was  there  shown  to  be  inherent  in  the 
political  society ;  and  it  was  stated  that,  although  two  or  more 
sovereigns  might  become  merged  into  one,  sovereignty  is  indi 
visible  and  incommunicable.  It  is  impossible  that  a  sovereign 
society  should  transfer  its  inherent  sovereignty  to  any  other 
society,  or  to  a  part  of  itself,  so  as  to  render  the  receiving  body 
or  person  absolute  sovereign  over  it.  The  mind  refuses  to  con 
ceive  of  a  political  society  in  a  fit  of  apathy  or  of  frenzy,  part 
ing  with  its  birthright  beyond  redemption.  And  to  suppose 
such  an  alienation  made  to  citizens  of  the  State,  however  emi 
nent,  would  be  scarcely  less  abhorrent  than  to  aliens.  It  is  not 
to  be  imagined  that,  were  such  an  alienation  possible,  it  could 
be  made  by  the  sovereign  society  itself  directly ;  it  must  be 
made  by  some  part  of  it,  claiming  a  right  to  act  for  it  by  repre 
sentation,  as  by  some  branch  of  the  government  now  existing. 
But  that  the  electors,  or  either  of  the  three  administrative  de 
partments  of  the  government,  should  be  able  by  any  hocus  pocus 
to  transfer  those  transcendant  powers  which  belong  to  the  polit 
ical  society  as  such,  is  incredible;  certainly  without  an  express 
warrant  from  the  sovereign  to  that  effect.  And  supposing  such 
a  warrant  were  a  thing  possible  to  be  given,  what  consideration 
could  there  exist  sufficient  to  sustain,  in  any  court,  whether  of 
law  or  of  abstract  morality,  so  unconscionable  a  contract  ?  It 
is  this  view  which  justifies  the  revolts  now  so  common  in  Eu 
rope,  of  subjects  against  their  servants,  calling  themselves  their 
sovereigns.  Intrusted  with  the  government,  those  servants  or 
their  ancestors,  in  some  former  age,  upset  the  balance  of  the 
1  See  ante,  §  22. 


300       ARE   CONVENTIONS   POSSESSED    OF   SOVEREIGN   POWERS? 

Constitution,  and  proclaimed  themselves  to  be  the  true  sover 
eigns.  But  such  a  proclamation  cannot  alter  the  fact,  which  is, 
that  the  nation  as  a  unit  is  the  only  sovereign.  Force  or  fraud 
on  the  part  of  the  servant,  or  pusillanimity  on  that  of  the  na 
tion,  may  have  given  the  prestige  of  success  to  the  usurpation 
of  the  former,  but  cannot  have  divested  the  inalienable  rights  of 
the  latter.  No  truth  is  becoming  more  clear,  in  our  day,  than 
that  in  demanding  everywhere  the  supreme  direction  of  the 
commonwealth,  and  in  asserting  a  right  to  determine  the  modes 
and  instruments  of  its  administration,  the  people — the  nation 
—  are  but  reclaiming  their  own. 

§  316.  It  seems  clear,  then,  that  if  there  is  claimed  for  a  Con 
vention  the  possession  of  absolute  sovereignty  for  the  time  be 
ing,  it  must  be,  not  on  the  de  jure  ground  of  actual  transfer, 
but  on  the  de  facto  one  of  successful  usurpation  or  revolution  • 
which,  as  divesting  the  rights  of  the  people,  we  have  just  seen, 
is  of  no  force  or  validity  whatever. 

And  here  it  is  proper  to  note  a  distinction  which  is  made  by 
those  who  maintain  the  derivation  of  sovereign  powers  to  Con 
ventions  by  transfer  from  the  true  sovereign,  namely,  that  if  not 
absolutely  sovereign  with  reference  to  the  political  society,  they 
are  so  with  respect  to  the  objects  for  which  they  are  respectively 
convened,  namely,  the  framing  anew,  altering,  or  amending  of 
the  fundamental  law.  Thus,  in  the  Illinois  Convention  of  1862, 
the  committee,  whose  report  on  the  powers  of  that  body  has 
been  already  mentioned,  conclude  that  remarkable  document  as 
follows :  — 

"  Your  committee,  therefore,  have  come  to  the  conclusioii, 
that,  after  due  organization  of  the  Convention,  the  law  calling 
it  is  no  longer  binding,  and  that  the  Convention  then  has  su 
preme  power  in  regard  to  all  matters  necessary  and  incident  to 
the  alteration  and  amendment  of  the  Constitution."  Here,  if 
words  mean  any  thing,  the  Convention  is  claimed  to  be  sover 
eign  in  a  sphere  of  operations  which  is  limited,  relating  to  the 
enactment  of  the  fundamental  law.  But,  it  is  certain  that  that 
Convention  was  not  sovereign,  nor  even  supreme,  in  that  sphere, 
but  subject  to  the  Constitution  of  the  United  States.  That 
was  distinctly  admitted,  on  numerous  occasions,  by  members  of 
that  Convention  who  were  loudest  in  their  assertions  of  sover 
eign  powers,  and  by  the  committee  itself  above  referred  to,  in 


ARE   CONVENTIONS   POSSESSED    OF   SOVEREIGN   POWERS?      301 

their  report,  from  which  that  extract  was  made.  In  another  para 
graph  the  committee  say:  —  "It"  (the  Convention)  "is  a  vir 
tual  assemblage  of  the  people  of  the  State,  sovereign  within  its 
boundaries  as  to  all  matters  connected  with  the  happiness,  pros 
perity,  and  freedom  of  the  citizens,  and  supreme  in  the  exercise 
of  all  power  necessary  to  the  establishment  of  a  free  constitu 
tional  government,  except  as  restrained  by  the  Constitution  of  the 
United  States"  What  kind  of  a  sovereignty  is  that,  which  is 
limited,  in  respect  of  its  sphere  of  action,  to  alterations  of  the 
fundamental  law,  and  limited  within  that  sphere  by  the  Consti 
tution  of  a  distinct  society,  by  which  it  is  forbidden  to  meddle 
with  important  subjects  of  legislation,  such  as  war  and  peace, 
treaties,  &c.,  proper  for  any  body  which  is  really  sovereign  ? 
Moreover,  this  very  Convention,  which  refused  to  obey  the  in 
junction  of  the  statute,  under  which  it  assembled,  relating  to  its 
printer,  deemed  itself  compelled,  as  well  by  the  injunction  of 
that  same  statute  as  by  the  customs  in  such  cases  established, 
to  submit  to  the  people  for  ratification  or  rejection  the  Constitu 
tion  it  had  matured.  If  a  body  thus  hampered  and  subordi 
nated  is  a  sovereign  power,  so  are  their  grooms  and  their  boot 
blacks,  since  each  of  those  menials  has  committed  to  him 
absolute  power  to  perform  the  duties  assigned  him,  subject  to 
the  limitations  contained  in  his  commission  and  to  the  laws  of 
the  land. 

§  317.  The  other  alternative,  which  supposes  every  citizen,  or, 
at  least,  every  elector  possessed  of  sovereign  powers,  according 
to  the  loose  political  jargon  of  our  times,  and  that  Conventions 
represent  them  in  their  sovereign  character,  each  of  their  mem 
bers  being  a  sovereign  in  his  own  right  as  well  as  in  the  right  of 
representation  of  sovereigns,  involves  two  fundamental  errors, 
which  indeed  are  its  only  foundation.  The  first  error  is  in  sup 
posing  that  there  is  any  such  thing  as  the  personal  sovereignty 
of  individuals  in  any  political  society  whatever.  In  relation  to 
political  rights  and  obligations,  the  unit  is  not  the  individual  or 
the  family,  unless  indeed  the  family  constitute  a  patriarchal 
government,  but  the  state.  In  the  matter  of  civil  rights  and 
obligations,  on  the  other  hand,  the  unit  is  the  individual  citizen 
We  have  pointed  out  in  the  chapter  on  sovereignty  the  absurd 
consequences  flowing  from  the  hypothesis  either  of  many  sov 
ereigns  in  the  same  political  society,  or  of  a  divided  or  fractional 


302       ARE   CONVENTIONS   POSSESSED   OF   SOVEREIGN   POWERS? 

sovereignty  in  the  separate  citizens  of  a  state.  In  either  case, 
each  citizen  would  be  equal  to  every  other  citizen,  and  there 
would  be  no  common  superior  —  a  condition  of  things  in  which 
government  would  be  impossible,  and  laws  and  Constitutions 
become  what  Mr.  Burke  styled  the  Bill  of  Rights  of  the  French 
Constitution  of  1793,  but  "  a  digest  of  anarchy." 

§  318.  The  second  error  in  the  hypothesis  of  conventional 
sovereignty  based  on  the  representation  of  individual  sovereigns, 
is  in  supposing  that  such  a  sovereignty  of  the  individual  could 
be  alienated,  were  it  conceded  to  exist.  It  is  evident  that  the 
hypothesis  that  every  citizen  is  vested  to  some  extent  with  the 
attributes  of  sovereignty,  is  founded  on  transcendental  views  of 
the  dignity  of  the  individual,  resulting  from  an  extension  to 
every  person  considered  as  a  part  of  a  political  society,  of  rela 
tions,  rights,  and  duties,  analogous  to  those  which  are  conceived 
as  attaching  to  him  in  the  domain  of  morals.  But  this  is 
erroneous,  and  is  one  of  many  instances  showing  the  dangers  of 
reasoning  by  analogy  in  matters  of  political  concernment.  But 
supposing  such  a  sovereignty  of  the  individual  to  be  a  fact,  to 
alienate  it  would  be  to  impart  to  another  powers  which  be 
longed  to  the  giver  only  by  virtue  of  his  individual  manhood, 
which  were  essential  attributes  of  his  personality,  and  which 
consequently  he  could  not  give,  nor  another  receive.  If  a  Con 
vention  of  several  of  those  individual  sovereigns  were  pos 
sessed  of  sovereignty,  it  would  be  a  contradiction  to  suppose 
that  transcendent  power  to  be  left  still  existing  in  the  persons 
whom  it  represented.  The  result  is,  then,  that  in  no  intelligible 
sense  of  the  word  sovereign  can  it  be  properly  applied  to  a 
Convention. 

§  319.  Before  leaving  this  branch  of  the  discussion,  it  is 
proper  to  note,  that  although  Conventions  are  not  sovereign 
bodies,  they  are  intrusted  by  the  sovereign  society  with  the  exer 
cise  of  an  important  sovereign  power,  that  of  legislation,  of  a 
certain  kind,  and  to  a  certain  extent.  The  substantive  powers 
of  government,  such  as  those  of  enacting,  expounding,  and  exe 
cuting  the  laws,  are  all  sovereign  powers.  But  when  it  is  said 
that  the  several  agencies  constituting  a  government  are  per 
mitted  to  exercise  sovereign  powers,  it  is  far  from  asserting  that 
those  agencies  are  possessed  of  original  sovereignty.  While 
they  are  wielding  powers  that  belong  to  the  sovereign  society, 


RELATIONS  OF  CONVENTIONS  TO  THE  STATE.        303 

that  society  is  conceived  of  not  only  as  existing,  but  as  clothed 
continually  with  all  the  rights  of  source  of  power,  and  of  final 
arbiter  in  all  questions  relating  to  its  extent  or  exercise.  The 
argument,  therefore,  which  should  seek  to  infer  sovereignty  in 
the  Convention  from  the  fact  of  its  being  vested  to  some  extent 
with  the  exercise  of  sovereign  powers,  would  prove  too  much ; 
it  would  prove  that,  in  any  well-constructed  government  in  our 
times,  there  were  numerous  sovereign  bodies  or  persons,  the 
legislature,  the  king,  president  or  emperor,  and  the  bench  of 
judges. 

§  320.  (b).  We  are  next  to  inquire  into  the  relations  of  Con 
ventions  to  the  government  of  the  state,  as  a  whole,  and  the 
powers  growing  out  of  those  relations. 

As  to  the  former,  the  substance  of  what  I  desire  to  say, 
may  be  comprised  in  the  discussion  of  a  single  question, —  Is  a 
Convention  a  component  part  of  the  governmental  system  of 
the  state  ? 

If  it  is  not  a  part  of  that  system,  certainly  the  difficulties  of 
locating  it  and  of  ascertaining  its  powers  are  infinitely  enhanced, 
for  the  only  alternative  is  to  consider  it  as  imperium  in  imperio ; 
a  body  whose  powers  cannot  be  delineated,  because  practically 
unlimited  ;  a  body  having  only  an  incidental  relation,  by  reason 
of  the  necessities  attending  its  birth,  to  the  ordinary  govern 
mental  agencies  —  the  government,  indeed,  sustaining  to  it  the 
relation  not  of  parent  or  guardian,  but  of  midwife  merely  —  a 
body,  finally,  standing  in  necessary  connection  only  with  the 
sovereign  for  which  it  acts,  or,  rather,  whose  successor  it  is.  On 
the  other  hand,  nothing  could  conduce  more  to  simplicity  of 
view,  than  to  consider  this  institution  as  a  branch  of  that  system 
by  which  the  state,  considered  as  a  political  society,  works  out 
its  will  in  relation  both  to  itself  and  to  the  citizens  of  which  it 
is  composed.  And  this,  although  the  subject  is  not  free  from 
difficulty,  I  am  satisfied  is  the  correct  view  to  take  of  the  ques 
tion.  We  have  seen  in  the  first  chapter,  that,  in  England  —  and 
the  same  is  true  generally  in  all  foreign  states  —  the  power  of 
fundamental  legislation  belongs  to  the  Parliament,  precisely  as 
does  that  of  ordinary  legislation  ;  and  that,  for  special  reasons 
which  were  there  detailed,  a  different  plan  has  been  adopted  in 
the  United  States,  namely,  that  of  distinct  bodies  for  the  two 
species  of  legislation.  The  fact,  however,  that,  except  with  us, 


304  RELATIONS   OF   CONVENTIONS   TO    THE   STATE. 

the  two  species  are  always  united,  demonstrates  that  there  is  no 
natural  incompatibility  between  them.  Though  variant  in  char 
acter  and  importance,  fundamental  laws  and  municipal  laws 
equally  conform  to  the  definition  of  laws.  And  certainly,  the 
enactment  of  laws  is  the  proper  function  of  the  government  of 
a  state.  If  it  be  objected,  that  the  idea  of  a  system  depending 
for  its  own  renovation  upon  itself,  involves  a  contradiction,  the 
reply  is,  that  there  is  in  it  no  contradiction,  whenever,  as  in  every 
political  society,  the  system  is  one  operated  by  vital  forces.  This 
is  a  matter  of  common  experience  in  the  strictly  analogous  case 
of  the  animal  kingdom.  In  the  animal,  those  organs  by  which 
are  discharged  the  functions  of  reparation  and  reproduction  are 
clearly  as  much  parts  of  the  organism  as  those  by  which  it  de 
fends  itself  from  hostile  attack,  or  adjusts  itself  to  changes  of 
its  physical  condition.  Why  should  that  body  of  functionaries 
which  legislates  for  the  governors,  as  such,  be  denied  a  place  in 
the  state  governmental  system  any  more  than  that  which  legis 
lates  for  the  governed  ?  The  circumstance  that  the  former 
assembles  only  occasionally,  though  it  doubtless  leads  to  much 
of  the  misconception  prevalent  regarding  it,  is  really  a  matter 
of  no  consequence  in  determining  its  true  character.  The  fre 
quency  or  infrequency  of  its  assembling  is  rather  one  of  those 
matters  of  practical  detail  which  are  determined  from  time  to 
time,  as  may  be  necessary  to  render  the  Convention  .system 
harmless  as  well  as  efficient.  But  the  fact  that  Conventions 
always  regularly  assemble  on  the  call  of  the  legislatures  of  the 
states  concerned,  indicates  decisively,  that  the  Convention  has  a 
place  in  the  governmental  system.  Had  it  been  the  design  of 
those  who  framed  that  system  originally,  to  make  of  the  Con 
vention  a  power  outside  of  the  circle  of  government,  why  make 
it  dependent  for  its  existence  upon  an  act  of  a  single  depart 
ment  of  that  government,  thus  stamping  upon  its  very  front 
indubitable  evidence  of  its  filial  relation  to  it? 

§  321.  The  probability  that  Conventions  were  intended  to  be 
parts  of  the  systems  of  government  amongst  us,  is  increased  by 
looking  at  the  practical  consequences  of  the  contrary  hypothesis. 
If  they  are  not  parts  of  those  systems,  they  must  be  independent 
of  them,  practically,  and  those  theorizers  may  be  right,  who 
proclaim  the  incompetence  of  legislatures  to  bind  Conven 
tions  by  their  enactments.  To  the  legislature,  in  that  view, 


ARE   MEMBERS   OF   CONVENTIONS   STATE   OFFICERS  ?  305 

belongs  the  ministerial  duty  of  issuing  the  fiat  by  which  the 
Convention  is  spoken  into  being,  bat  there  its  power  ends.  Once 
assembled  and  organized,  that  body  slips  its  leash  and  bounds 
into  a  condition  of  absolute  uncontrollability.  It  becomes  po 
tentially,  at  least,  a  realization  of  that  remorseless  monster  in 
the  human  form  which  the  fancy  of  Mrs.  Shelley  has  depicted 
in  her  Frankenstein  —  a  product  of  transcendent  mechanical 
and  philosophical  skill,  endowed  with  life  and  intelligence,  but 
destitute  of  moral  instincts  or  of  practical  accountability;  a 
monster  with  powers  so  surpassing  those  of  the  philosopher  who 
created  it,  that  it  was  wholly  beyond  his  control  —  he  could  not 
even  kill  it.  In  short,  on  this  hypothesis,  a  Convention  would 
exhibit  the  anomaly  of  an  institution,  manifesting  all  the  traits 
of  an  absolute  despot,  occasionally  springing  up  alongside  of 
a  system  of  laws,  and,  during  its  unregulated  and  indeterminate 
existence,  compelling  from  that  system  complete  obedience.  If 
this  be  thought  to  be  an  extreme  view  of  the  possibilities  of  such 
an  institution,  the  answer  is,  that  in  estimating  the  character  of 
any  political  power,  it  is  extremes  that  must  be  considered ;  for 
to  them  it  is  the  tendency  always  to  run.  A  political  system 
can  be  safely  characterized  only  by  transcribing  its  least  favora 
ble  feature,  precisely  as  the  strength  of  a  machine  is  to  be  gauged, 
not  by  that  of  its  strongest,  but  by  that  of  its  weakest,  part. 

§  322.  In  the  Illinois  Convention  of  1862,  a  question  arose 
involving  a  practical  application  of  these  principles.  By  the 
Constitution  of  that  State,  Art.  V.  Sec.  10,  it  was  provided, 
that  the  judges  of  the  Supreme  and  Circuit  Courts  should  not 
be  eligible  "  to  any  other  office,  or  public  trust,  of  profit."  in  the 
State  or  the  United  States,  during  the  term  for  which  they  were 
elected,  nor  for  one  year  thereafter ;  and  that  all  votes  for  either 
of.  them  for  any  elective  office  (except  that  of  judge  of  the  Su 
preme  or  Circuit  Court)  given  by  the  General  Assembly  or  the 
people,  should  be  void.  One  of  the  delegates,  Mr.  O'Melveny, 
having  been  a  judge  of  one  of  the  Circuit  Courts,  within  one 
year  prior  to  his  election  to  the  Convention,  his  competitor  con 
tested  his  seat,  on  the  ground,  that  he  was  incapable  of  sitting 
as  a  member  of  that  body  under  the  above  provision  of  the 
Constitution.  The  Convention  having  at  first,  without  a  di 
vision,  decided  that  he  should  retain  his  seat,  a  motion  was 
made  on  the  following  day,  to  reconsider  that  vote,  upon  which 

20 


306  ARE   MEMBERS   OF    CONVENTIONS   STATE   OFFICERS  ? 

arose  a  spirited  debate,  the  question  being,  whether  to  be  a 
member  of  a  Convention  was  to  hold  "  an  office,  or  public  trust 
of  profit"  in  the  State.  On  the  part  of  those  who  sustained 
the  sitting  member,  it  was  contended,  that  the  words  "  office,  or 
public  trust,"  referred  particularly  to  the  distribution  of  powers 
contained  in  the  Constitution,  according  to  the  first  section  of 
the  second  article  of  which,  the  powers  of  the  government  of  the 
State  were  confided  to  three  separate  bodies  of  magistracy,  the 
legislative  to  one,  the  executive  to  another,  and  the  judicial  to 
a  third.  To  which  of  these  departments,  it  was  asked,  did  the 
delegate  to  the  Convention  belong  ?  Certainly,  it  was  answered, 
it  could  not  be  contended  that  he  belonged  to  either  of  them, 
for  all  the  officers  belonging  to  each  were  specially  enumerated 
in  the  Constitution.  The  only  plausible  argument  that  could 
be  urged  against  this  view,  it  was  said,  was,  that  there  was 
another  provision  of  the  Constitution,  that  relating  to  amend 
ments,  which  provided  for  the  election  of  delegates  to  the  Con 
vention,  from  which  it  might  be  attempted  to  infer,  that  those 
persons,  being  chosen  in  pursuance  of  the  Constitution,  were  as 
much  holders  of  office  or  public  trust  under  it,  as  were  the 
judges  or  the  governor ;  but  that  the  reply  was,  that  the  con 
stitutional  provision  referred  to  did  not,  either  in  terms  or  spirit, 
define  the  qualifications  of  delegates,  as  it  did  those  of  the 
judges,  members  of  the  legislature,  etc. ;  it  simply  left  the  people 
to  choose  whomsoever  they  might  desire,  without  regard  to  age 
or  other  qualifications ;  whereas,  had  the  framers  of  the  Consti 
tution  regarded  the  members  of  the  Convention  as  State  officers, 
they  would  have  inserted  particular  provisions,  prescribing  not 
only  the  persons  to  be  elected,  but  the  time  and  mode  of  their 
election,  and  perhaps  their  powers  and  duties. 

§  323.  On  the  other  hand,  it  was  contended  by  those  who 
favored  the  contestant,  in  substance,  that  if  membership  of  a 
Convention  was  not  an  office,  which  was  not  conceded,  it  cer 
tainly  was  a  public  trust,  and  that,  of  the  greatest  magnitude. 
Every  constable,  and  every  justice  of  the  peace,  —  functionaries 
whose  duties  were  comparatively  trivial,  —  was  conceded  to  be  an 
officer,  and  in  a  position  of  public  trust,  because  it  had  been 
found  not  impracticable  to  specify  in  the  Constitution  the  classes 
of  persons  who  should  fill  those  places  and  the  full  scope  of 
their  duties ;  but  those  public  servants,  whose  business  so  far 


ARE   MEMBERS   OF   CONVENTIONS   STATE   OFICERS  ?  307 

transcended  in  importance  that  of  all  others  that  it  was  deemed 
impracticable  or  inexpedient  to  limit  it  by  prior  description,  and 
upon  the  fidelity  of  whom,  to  their  constituents,  depended  the 
liberties,  to  say  nothing  of  the  existence,  of  the  Commonwealth, 
were  not  only  not  officers,  but  they  were  denied  to  be  holders 
of  a  public  trust  in  the  State  which  they  thus  served  !  Besides, 
what  was  the  reason  for  inserting  the  prohibitory  clause  in  the 
Constitution  ?  Clearly,  to  furnish  a  guaranty  of  the  purity 
and  independence  of  the  State  judiciary  ;  qualities  which  could 
not  well  exist,  if,  while  invested  with  the  judicial  robes,  the 
judges  were  allowed  to  participate  in  the  scramble  for  Federal 
or  State  offices.  But  did  the  framers  of  the  Constitution  in 
tend  that  those  officers  whom  they  forbade  to  accept  another 
position  of  profit  under  the  State,  or  the  United  States,  for  an 
entire  year  after  sitting  as  judges,  lest  the  honor  of  the  bench 
might  be  sullied,  should  be  at  liberty  to  enter  a  Convention  to 
new-model  the  fundamental  laws,  —  amongst  them,  perhaps, 
those  regulating  the  tenure  and  emoluments  of  their  own 
offices  ? 

§  324.  In  my  judgment,  there  can  be  but  little  doubt,  that  a 
member  of  a  Convention  is,  in  the  enlarged  and  proper  accepta 
tion  of  the  term,  an  u  officer  "  of  the  State.  This  follows,  not 
simply  from  the  reasonings  in  the  Illinois  Convention,  of  which, 
somewhat  developed  into  details,  an  abstract  has  been  given, 
but  especially  from  the  principles  explained  in  preceding  sec 
tions.  A  Convention  is  a  part  of  the  apparatus  by  which  a 
sovereign  society  does  its  work  as  a  political  organism.  It  is 
the  sovereign,  as  organized  for  the  purpose  of  renewing  or 
repairing  the  governmental  machinery.  That  same  sovereign, 
as  organized  for  the  purpose  of  making  laws,  is  the  legisla 
ture  ;  as  organized  for  the  purpose  of  applying  or  carrying  into 
effect  the  laws,  it  is  the  judiciary  or  the  executive.  These  suc 
cessive  forms  into  which  the  sovereign  resolves  itself,  are  but 
systems  of  organization  having  relation  more  or  less  directly  to 
the  government  of  the  society.  Together,  they  constitute  the 
government.  And  yet  they  do  not  each  constitute  the  govern 
ment.  One  branch  of  the  governmental  system  may  perform  no 
governing  function  at  all,  in  the  ordinary  sense  of  the  term  — 
may  not  operate  or  administer  the  government.  Thus,  under 
those  Constitutions  which  directed  the  election  of  a  Council  to 


308      CAN   CONVENTIONS   FILL   VACANCIES   IN   THE   GOVERNMENT? 

the  Governor,  merely  as  an  advisory  body,  such  Council,  though 
clearly  a  branch  of  the  government,  did  not  govern.  The  gov 
ernment  of  a  commonwealth  is  the  totality  of  those  instruments 
through  whose  ministry  its  political  organization  is  begun  and 
continued.  It  is  that  totality  which  governs,  and  not  necessarily 
either  of  its  members,  precisely  as  it  is  the  body  of  an  animal 
which  lives  and  acts,  and  not  the  separate  parts,  though,  doubt 
less,  of  these,  one  masticates  the  food,  another  digests  it,  a  third 
performs  locomotion,  a  fourth  thinks,  and  so  on.  And,  as  in  the 
living  body,  each  organ,  contributing  by  no  matter  how  humble 
or  obscure  a  function  to  the  common  life,  or  development,  is  a 
member  of  the  organism  ;  so  in  the  commonwealth  every  citizen 
or  body  of  citizens,  charged  with  any  duty  looking  to  the  de 
fence,  the  operation  or  the  renewal  of  the  political  system,  is  an 
organ  of  that  commonwealth  for  purposes  connected  with  its 
government,  and  must  be  ranked  amongst  its  officers.  In  other 
words,  if  the  nutritive  and  reproductive  apparatus  is  properly 
reckoned  as  a  part  of  the  animal  economy,  the  corresponding 
apparatus,  in  an  organized  state,  must  be  accounted  a  part  of 
the  political  structure. 

§  325.  The  relations  of  Conventions  to  the  state  as  a  whole 
being  ascertained,  three  practical  questions  will  now  be  con 
sidered,  from  which  their  powers,  growing  out  of  those  rela 
tions,  may  be  determined,  namely  - 

1.  Can  a  Convention  appoint  officers  to  fill  vacancies  in  the 
various  governmental  departments  ?  1 

2.  Can  it  eject  from   office  persons  holding  positions  in  the 
government  by  regular  election  or  appointment?2 

3.  Can  it  direct  such  officers  in  the  discharge  of  their  duties  ?  3 

1  In  the  Louisiana  Convention  of  1844,  a  resolution  was  introduced  provid 
ing  that  certain  specified  officers  should  fill  the  offices  of  Parish  Judges  and 
District  Judges,  "  now  vacant  by  the  election  of  said  officers  to  this  Conven 
tion."     The  resolution  was  defended  by  its  mover  on  the  ground  of  necessity ; 
but  the   Convention  deemed  the  assumption  of  the  power  unwarranted,  and 
rejected  the  resolution  by  a  vote  of  sixty-eight  to  one.  —  Deb.  La.  Conv.  1844, 
pp.  26,  27. 

2  This  question  was  raised  in  the  Illinois  Convention  of  1862,  but  the  power 
was  not  exercised. 

3  This  question  was  raised  in  the  Louisiana   Convention  of  1864,  and  the 
power  of  instruction  asserted  by  a  vote  of  sixty  to  fourteen.     It  notified  the 
proper  authorities  to  raise  the  salaries  of  loyal  ladies  engaged  in  "  teaching  the 


CAN  CONVENTIONS  REMOVE  FROM  OR  APPOINT  TO  OFFICE?   309 

If  a  Convention  has  power  to  do  either  of  these  acts,  what  is 
the  extent  of  its  power,  and  in  what  mode  must  it  be  exer 
cised  ? 

The  power  to  fill  vacancies  in  the  government  must  be  denied 
to  a  Constitutional  Convention  in  any  case.  A  sufficient  reason 
for  denying  it  is,  that  it  is  not  necessary,  since,  running  a  paral 
lel  course  to  that  body,  and  in  full  life  and  activity,  is  the  ordi 
nary  appointing  power,  in  its  several  departments,  to  whom  the 
duty  of  filling  such  vacancies,  by  the  Constitution,  belongs.  To 
assume  the  power  would  be  justifiable  only  under  a  pressure  of 
circumstances  such  as  would  necessitate  usurpation,  and  convert 
the  Constitutional  into  a  Revolutionary  Convention.  Even  sup 
posing  the  body  invested  with  definitive  powers  to  establish  a 
Constitution,  without  submission  to  the  people,  the  selection  of 
officers  to  fill  vacancies,  however  occurring,  could  not  be  shown 
to  be  necessary  to  the  fulfilment  of  such  a  commission.  That 
duty  could  be  better  done  by  those  to  whom  it  is  usually  com 
mitted  ;  and  when  to  this  it  is  added,  that  it  would  be  unsafe  to 
intrust  power  so  extensive  to  a  single  assembly,  an  express 
warrant  must  be  demanded  before  assenting  to  its  exercise. 

§  326.  To  the  two  remaining  questions,  so  far  as  they  relate 
to  direct  action  of  the  Convention,  the  same  answer  must  be 
given.  That  body  cannot  remove  from  office,  or  instruct  those 
holding  office,  by  any  direct  proceeding,  as  by  resolution  or 
vote  applying  to  particular  cases.  It  is  its  business  to  frame 
a  written  Constitution  ;  at  most,  to  enact  one.  It  has  no 
power,  under  such  a  commission,  to  discharge  the  public  ser 
vants,  except  so  far  as  their  discharge  might  result  from  the 
performance  of  its  acknowledged  duty.  Indirectly,  therefore, 
by  constitutional  provision  of  general  application,  unquestion 
ably  the  power  of  removal  must  exist.  A  Convention  may 
abolish  existing  offices,  and  thus  effect  the  removal  of  those 
who  fill  them.  So,  in  reference  to  instructing  officers  in  rela 
tion  to  their  duties,  so  far  as  the  discharge  of  its  admitted 
function,  the  framing  of  fundamental  laws,  is  concerned,  there 
is  no  doubt  a  Convention  may  modify  at  pleasure  the  regula 
tions  under  which  the  government  is  administered  in  all  its  de 
partments.  But  to  attempt  to  issue  instructions,  in  relation  to 

youth  of  our  country."     The  Convention,  however,  as  we  have  seen,  was  a  rev 
olutionary  body. 


310      CAN   CONVENTIONS   REMOVE   FROM    OR   APPOINT   TO    OFFICE? 

matters  of  current  policy,  to  particular  officers,  would  be  to  blend 
with  its  ordinary  and  normal  function  those  belonging  properly 
to  the  legislature.  Especially  would  this  be  improper,  when  the 
Convention  meets  under  a  call  of  the  usual  character,  contain 
ing  no  power  but  to  frame  and  submit  to  the  people,  for  their 
adoption  or  rejection,  a  draft  of  a  Constitution. 

§  327.  Such,  I  think,  upon  principle,  must  be  the  answer  to 
the  questions  indicated. 

In  relation  to  the  power  of  a  Convention  to  remove  from, 
or  appoint  to,  office,  an  interesting  discussion  has  lately  arisen 
in  Missouri,  to  which  attention  must  for  a  moment  be  directed. 

By  the  Act  of  the  General  Assembly,  calling  the  Missouri 
Convention  of  1865,  Sec.  V.,  the  delegates  elected  to  that  body 
were  required  to  meet  and  organize,  and  thereupon  to  proceed 
"  to  consider,  first,  such  amendments  to  the  Constitution  of  the 
State  as  may  be  by  them  deemed  necessary  for  the  emancipa 
tion  of  slaves  ;  second,  such  amendments  to  the  Constitution  of 
the  State  as  may  be  by  them  deemed  necessary  to  preserve  in 
purity  the  elective  franchise  to  loyal  citizens,  and  such  other 
amendments  as  may  be  by  them  deemed  essential  to  the  promotion 
of  the  public  good" 

No  further  directions  were  given  in  the  Act  as  to  the  nature 
of  the  amendments  to  be  considered  by  the  Convention,  nor 
was  that  body  required  specifically  to  submit  the  fruit  of  its 
deliberations  to  the  people. 

The  Convention  met  on  the  6th  of  January,  1865,  and  ad 
journed  on  the  10th  of  April,  having  in  the  meantime  prepared 
divers  amendments  to  the  Constitution,  which,  being  submitted 
to  the  people  on  the  6th  of  June  following,  were  adopted.  Be 
side  these,  it  also,  on  the  llth  of  January,  adopted  and  put  in 
operation,  without  submission  to  the  people,  an  Ordinance 
"  abolishing  slavery  in  Missouri."  In  like  manner,  on  the  17th 
of  March,  it  adopted  and  put  in  operation,  without  submission, 
an  Ordinance  "  providing  for  the  vacating  of  certain  civil  offi 
ces  in  the  State,  filling  the  same  anew,"  &c.,  of  which  the  ma 
terial  portion  was  as  follows  :  —  "  Be  it  ordained,  &c. 

"  Section  I.  That  the  offices  of  the  Judges  of  the  Supreme 
Court,  of  all  Circuit  Courts,  and  of  all  Courts  of  Record,  estab 
lished  by  any  Act  of  the  General  Assembly,  and  those  of  the 
Justices  of  ail  County  Courts,  of  all  Clerks  of  any  of  the  afore- 


CAN  CONVENTIONS  REMOVE  FROM  OR  APPOINT  TO  OFFICE  ?   311 

said  courts,  of  all  Circuit- Attorneys  and  their  assistants,  and  of 
all  Sheriffs  and  County  Recorders,  shall  be  vacated  on  the  first 
day  of  May,  one  thousand  eight  hundred  and  sixty-five,  and  the 
same  shall  be  filled  for  the  remainder  of  the  term  of  each  of  said 
offices,  respectively,  by  appointment  by  the  Governor." 

In  pursuance  of  this  Ordinance,  each  of  the  offices  specified 
was  filled  by  the  Governor  —  the  prior  incumbents  having 
been  first,  with  force  or  otherwise,  ejected  therefrom.  A  vehe 
ment  outcry  was  thereupon  raised,  charging  the  Convention  and 
the  Governor  with  having  exceeded  their  authority.  Whether 
they  did  so  or  not  must  depend  on  the  question,  whether  the 
vacating  Ordinance  of  March  17,  1865,  was  an  amendment  to 
the  Constitution  or  not.  If  it  was,  it  was  within  the  express 
letter  of  the  commission  under  which  the  Convention  proceeded, 
the  Act  calling  it  together.  If  it  was  not,  that  body,  clearly, 
was  guilty  of  usurpation,  since  it  is  only  laws  of  a  fundamental 
character,  that  a  Convention  has  power  to  enact  or  recommend. 

§  328.  Of  the  question  stated,  whether  the  Ordinance  of 
March  17,  1865,  was  an  amendment  to  the  Constitution  or  not, 
the  following  considerations  seem  to  me  to  be  decisive :  — 

1.  An   amendment  to   a  Constitution  is  an  Act,  passed  by 
competent  authority,  modifying  permanently  the   structure,  the 
operation,  or  the  guarantees  of  the  government.     An  Act  which 
relates  only  to  its  temporary  administration,  to  the  particular  in 
dividuals  who  shall  or  shall  not  fill  its  offices,  or  which,  leaving 
the  Constitution  in  its  letter  intact,  merely  suspends  its  action 
for  a   time,   on    some   great   emergency,  cannot   be   called  an 
amendment  to  its  Constitution.     It  is  rather  an  administrative 
Act,  in  the   large   sense  of   the  term  ;    or,  where   its  effect  is 
merely  to  suspend  the  action  of  the   Constitution,  it  is,  in  sub 
stance,  an  executive  Act,  proper  especially  for  an  officer  charged 
to  see  to  it,  that  the  Republic  receives  no  detriment.     In  short, 
to  borrow  a  figure  which  perfectly  expresses  the  distinction  I 
am  contending  for,  it  is  an  Act  proper,  not  for  the  millwright, 
but  for  the  miller. 

2.  That  the  Ordinance  of  March  17th  was  of  this  temporary, 
administrative  character,  lacking  the  essential  characteristics  of 
a  fundamental  Act,  is  apparent  from   its   terms.     In   the   first 
place,  as  I  have  stated,  it  ousted  from  office  not  a  class  of  per 
sons,   but  particular  individuals;    declaring,   not  that   citizens 


312   CAN  CONVENTIONS  REMOVE  FROM  OR  APPOINT  TO  OFFICE? 

lacking  specified  qualifications  should  be  thenceforward  inca 
pacitated  to  hold  the  office  of  judge,  &c.,  but  that  Judges  Bay 
and  Dryden,1  &c.,  then  holding  office,  should  vacate  the  same. 
Secondly,  the  Ordinance  required  the  Governor  to  fill  the  offices 
thus  vacated  "for  the  remainder  of  the  term  of  each  of  said 
offices"  It  thus  recognized  the  term  fixed  by  the  Constitution 
as  still  existing,  and  limited  its  own  operation  to  the  part  there 
of  yet  unexpired.  In  so  doing,  it  obviously  contemplated  that, 
at  the  expiration  of  that  term,  the  same  offices  should  be  filled 
as  the  Constitution  provided,  the  Ordinance  notwithstanding. 
In  other  words,  it  did  not  modify  the  Constitution,  but  sus 
pended  its  operation  for  a  limited  time,  after  which  it  was  again 
to  be  in  full  force. 

§  329.  3.  That  the  Convention  itself  did  not  regard  the  Or 
dinance  in  question  as  an  Act  of  fundamental  legislation,  is  ap 
parent  from  the  fact,  that  it  did  not  submit  it  to  the  people  with 
the  amendments  to  the  Constitution,  on  the  6th  of  June,  but 
put  it  in  operation  by  its  own  authority.  If  it  be  objected,  that 
the  Convention  also  withheld  from  submission  to  the  people  the 
Ordinance  of  January  11,  1865,  abolishing  slavery  in  Missouri, 
clearly  an  Act  of  fundamental  legislation,  and  that,  if  non-sub 
mission  indicates  decisively  the  character  of  the  one  Ordinance, 
it  ought  to  do  so  of  the  other,  the  answer  is,  that  although  the 
better  course  would  have  been  to  submit  the  slavery  Ordinance, 
yet,  as  the  Convention  Act  was  silent  on  the  subject  of  sub 
mission,  and  as  it  expressly  required  the  Convention  to  pass 
such  amendments  to  the  Constitution  as  they  should  deem 
necessary  to  emancipate  the  slaves,  the  cases  are  wholly  differ 
ent,  and  the  objection  is,  therefore,  groundless.  In  the  one  case, 
that  body  passed,  but  did  not  submit  to  the  people,  an  Ordi 
nance,  which  the  people,  through  the  legislature,  had  required  it 
to  pass ;  and  in  the  other  it  passed,  without  submitting  to  the 
people,  an  Ordinance  which  it  had  not  been  required  to  pass, 
and  of  their  authority  to  pass  which,  as  an  amendment  to  the 
Constitution,  there  is  the  gravest  doubt. 

§  330.  If  the  action  of  the  Convention  was  not  in  the  line  of 
fundamental  legislation,  the  alternative  is,  that  it  was  one  of 
revolution  ;  for,  in  that  case,  it  was  one  belonging  to  some 

1  The  names  of  two  of  the  judges  ousted  under  the  Ordinance,  by  whom 
prosecutions  were  brought  to  test  its  validity  in  the  courts  of  Missouri. 


CAN   CONVENTIONS   REMOVE   FROM   OR   APPOINT   TO    OFFICE  ?     313 

branch  of  the  existing  government  —  an  Act  of  administration 
or  of  ordinary  legislation,  coming  within  the  province  of  some 
other  department.  And  that  it  was  of  this  character  is,  in  my 
judgment,  susceptible  of  no  doubt. 

In  denying  to  the  Convention,  however,  the  power  in  ques 
tion,  it  is  not  meant  to  imply,  that  the  particular  acts  authorized 
by  the  Ordinance  of  March  17th  were  not  necessary,  but  merely 
that  they  were  not  legal  or  constitutional.  The  Journals  of  the 
Convention  of  1861,  in  the  same  State,  are  filled  with  evidences 
that  Missouri  was  at  that  time  in  a  revolutionary  condition. 
Acts  were  done  by  that  body,  which  were  proper  only  for  a 
strictly  Revolutionary  Convention,  one  which  had  assumed  in 
a  time  of  crisis,  when  the  wheels  of  the  regular  administration 
were  blocked,  the  functions  of  a  provisional  government.  One 
of  the  earliest  Ordinances  of  that  Convention  was  one  to  vacate 
the  offices  of  Governor,  Lieutenant  -  Governor,  Secretary  of 
State,  and  members  of  the  General  Assembly,  and,  of  its  own 
authority,  to  appoint  persons  to  exercise  the  duties  of  the  first- 
named  officers,  until  others,  with  a  new  General  Assembly, 
should  be  elected  in  the  November  following.1  It  also,  on  the 
same  day,  passed  an  Ordinance  repealing  certain  Acts  of  the 
General  Assembly,  approved  in  the  early  part  of  the  year  1861.2 
So,  also,  it  usurped  the  function  of  a  General  Assembly  by 
passing  an  Ordinance  for  the  organization  and  government  of 
the  Missouri  State  Militia,3  and  several  Ordinances  for  the 
appropriation  of  moneys  out  of  the  State  treasury.4  All  these 
acts  were  clearly  usurpations  of  authority  properly  belonging 
to  other  departments  of  the  State  government.  That  that  gov 
ernment  was  in  treasonable  hands  might  justify  the  Convention, 
on  moral  grounds,  in  seizing,  by  revolutionary  force,  powers  not 
its  own,  but  could  not  alter  the  legal  character  of  its  acts.  In 
1865,  the  same  necessity  perhaps  existed,  and,  if  so,  might  jus 
tify  acts  clearly  of  the  same  general  character,  legally  considered, 
as  those  of  its  predecessor  of  1861.  But,  as  I  have  said,  upon 
this  question  I  pass  no  opinion.  If  the  acts  characterized  as 
revolutionary  were  strictly  necessary,  it  was  not  the  first  time  in 
history  that  a  party,  having  morally  and  politically  the  better 
case,  had  legally  the  worst  of  the  argument. 

1  Ordinance  of  July  80,  1861.     See  Journal  of  the  session  of  the  Conven 
tion  held  in  June  of  the  year  1862,  Appendix,  pp.  3,  4. 

2  Id.  p.  4.  3  Id.  p.  7.  *  Id.  pp.  18,  19. 


314  RELATIONS   OF   CONVENTIONS   TO   THE   ELECTORS. 

§  331.  (c).  I  pass  now  to  consider  the  relations  of  Conven 
tions  to  the  separate  agencies  or  departments  of  the  govern 
ment,  and  the  powers  resulting  to  them  from  those  relations. 
Of  those  departments,  that  which  is  the  most  numerous  and 
which  stands  nearest  in  order  to  the  sovereign,  is  the  electors. 

By  the  term  electors,  according  to  the  American  Constitu 
tions,  generally,  with  which  alone  we  are  now  concerned,  is 
meant  that  body  of  citizens  who,  by  the  Constitution  or  laws  of 
the  State,  have  been  invested  with  the  rights,  first,  of  choos 
ing  the  most  important  administrative1  officers  of  the  govern 
ment,  and,  secondly,  of  determining,  by  its  direct  vote,  the  ex 
pediency  of  constitutional  changes,  and  of  enacting  them.  The 
electoral  body,  as  already  observed,  is  by  far  the  most  numerous 
corps  of  functionaries  in  the  State.  It  never  assembles  in  a 
single  body,  as  does  the  legislature,  but  exercises  its  prescribed 
functions  in  determinate  subdivisions  of  the  public  area,  each 
of  which  constitutes  an  electoral  circle,  where  alone  the  electors 
resident  within  it  can  exercise  their  franchise.  Beyond  the  lim 
ited  sphere  of  duty  laid  down  for  them  in  the  fundamental  law, 
this  most  important  body  has  no  power  or  official  character 
whatever.  It  cannot  pass  an  ordinary  statute,  or  render  a  judg 
ment,  or  execute  a  criminal.  Its  individual  members,  except  in 
the  simple  act  of  casting  their  vote  in  the  cases  prescribed  by 
law,  represent  nobody,  and  hence,  theoretically,  are  entitled  to 
no  more  weight  than  the  still  more  numerous  body  of  non- 
electors,  comprising  the  residue  of  the  people.  But,  although, 
while  acting  within  their  proper  province,  the  electors,  by  their 
vote,  are  deemed  to  utter  the  voice  of  the  sovereign,  it  is  only 
the  aggregate  vote  of  the  State,  or  what  I  might  describe  as 
the  resultant  of  all  the  separate  votes  of  its  individual  electors, 
which  can  be  thus  characterized,  not  the  vote  of  the  individual, 
or  of  the  subordinate  circle,  which,  as  such,  has  generally  no 
official  validity  whatever. 

§  332.  Within  the  sphere  allotted  to  the  electors  in  the  scheme 
of  government,  they  constitute  a  strictly  representative  body. 
But  it  is  only  one  of  a  number  of  such  bodies.  The  three  ordi 
nary  departments  of  a  government — the  legislative,  executive, 
and  judicial  —  are  also  representatives  of  the  same  constituent, 

1  I  use  the  word  "administrative"  here  in  its  broad  sense,  to  designate  all 
officers  concerned  in  operating  the  government,  —  legislative,  executive,  and 
judicial. 


RELATIONS  OF  CONVENTIONS  TO  THE  ELECTORS.      315 

the  sovereign.  That  is,  the  functions  severally  committed  to 
these  four  systems  of  agencies  are,  in  general,  committed  to 
them  absolutely,  with  respect  both  to  each  other  and  to  the  sov 
ereign  ;  the  latter  parting  with  the  right  to  exercise  the  power, 
though  not  with  the  right  to  withdraw  the  grant,  or  to  chastise 
those  who  abuse  it.  Because,  judging  from  the  visible  opera 
tions  of  government,  the  electors  seem  to  be  the  basis  of  the 
entire  system,  they  are  usually  denominated  the  people.  From 
this  circumstance  has  arisen  a  common  misapprehension,  to  the 
effect,  that  the  electors  are  the  source  and  possessors  of  all 
sovereign  rights  —  the  real  sovereign.  When  it  is  considered, 
however,  that  this  body  is  a  variable  one,  the  number  and  qual 
ifications  of  those  who  compose  it  depending  on  the  deter 
minations  from  time  to  time  of  that  power  lying  still  further 
back,  by  whom  the  Constitution  itself  is  enacted,  the  position 
of  electoral  sovereignty  is  seen  to  be  untenable.  The  electors 
merely  represent  the  sovereign,  and  are  under  all  the  conditions 
of  responsibility  and  of  limitation  of  power  which  attach  to  the 
departments  at  the  next  remove  from  the  source  of  sovereignty, 
generally  denominated  the  government. 

§  333.  To  determine  the  relations  of  Conventions,  in  general, 
to  this  primordial  body  of  functionaries,  let  us  first  recall  the 
genesis  of  the  former.  Conventions,  as  we  have  seen,  are 
bodies  chosen  by  the  electors,  at  the  instance  of  the  legislature. 
They  are  thus,  in  one  sense,  the  offspring  of  those  two  govern 
mental  agencies.  But,  on  a  broader  view,  they  are  to  be  re 
garded  as  the  appointees  of  the  sovereign  itself.  It  is  only 
through  agents  that  the  latter  can  act,  and  hence  there  is  no 
system  of  functionaries  amongst  all  those  organized  in  a  State, 
that,  if  considered  with  reference  to  its  immediate  source  and 
origin,  is  not  the  child  of  the  government  of  that  State.  They 
all  depend  upon  each  other,  and  run  more  or  less  into  each 
other,  trenching  upon  each  other's  power  and  jurisdiction.  Still, 
in  case  of  some  of  those  agencies,  it  would  not  be  denied  that 
they  are  selected  and  commissioned  by  the  sovereign,  and  if 
some,  so,  virtually,  are  they  all.  So  far,  then,  as  the  genesis  of 
Conventions  is  concerned,  they  must  be  set  down  as  bearing  to 
the  electors  substantially  the  same  relations  as  does  a  legislature. 
It  is  a  creature  of  the  same  political  society,  acting,  as  it  can 
only  act,  through  some  one  or  more  of  its  accustomed  organs. 


316  CAN   CONVENTIONS   DISFRANCHISE   ELECTORS? 

§  334.  Secondly,  to  determine  the  relations  of  Conventions 
to  the  electoral  body,  we  must  take  into  view  their  relative 
functions.  The  normal  conception  of  the  Convention  is  that  of 
a  body  appointed  by  the  sovereign  to  mature  a  scheme  of  fun 
damental  law,  to  be  submitted  to  that  sovereign  for  ratification 
or  rejection.  But  the  sovereign  neither  on  the  one  hand  ap 
points,  nor  on  the  other  ratifies  or  rejects,  by  its  direct  action. 
These  exercises  of  sovereignty  it  can  perform  only  through 
agents,  and  for  that  purpose  it  employs  the  electors,  as  being  the 
most  numerous,  the  most  disinterested,  and  the  nearest  to  itself, 
of  any  in  the  Commonwealth.  Hence  it  follows,  I  think,  that 
although  in  respect  of  their  common  origin  from  the  sovereign, 
the  Convention  and  the  electoral  body  may  be  considered  as  in 
a  certain  sense  coordinate,  they  are  nevertheless,  in  another  re 
spect,  to  be  ranked  as  unequal.  A  sort  of  primacy  must  be 
conceded  to  the  electors,  since,  so  far  as  the  work  of  the  Con 
vention  is  concerned,  they  wield  the  actual  sovereignty  ;  for  it 
is  they  who  pass  upon  it,  enacting  it  or  otherwise,  as  to  them 
seems  best.  Thus  the  electors  stand  between  the  Convention 
and  the  sovereign,  whose  rays  of  power  they  intercept  and 
gather  into  a  focus  of  their  own.  In  a  word,  then,  the  Conven 
tion  stands  related  to  the  electoral  body  thus  :  in  point  of  origin, 
so  far  as  other  parties  are  concerned,  they  are  coordinate,  as 
both  deriving  their  existence  from  the  same  source  of  power, 
the  sovereign ;  but,  with  respect  to  each  other,  the  electors  are 
the  more  dignified  and  ,the  more  nearly  sovereign  body,  since 
they  receive  their  appointment  directly,  through  the  Constitu 
tion,  from  the  sovereign,  whilst  the  Convention  receives  it  from 
the  sovereign  indirectly,  through  the  same  electors,  to  whom 
also  it  is  bound  to  submit  the  fruit  of  its  deliberations  for  ap 
proval  or  disapproval.1 

§  335.  In  the  light  of  these  principles,  it  will  not  be  difficult 
now  to  furnish  answers  to  such  questions,  depending  on  the  rela 
tions  just  explained,  as  it  may  be  useful  to  discuss. 

1.  Of  these,  the  first  which  I  shall  consider  is  this :  Can  a 
Convention  disfranchise  any  part  of  the  electoral  body  ? 

This  question  may  receive  two  different  constructions.  It 
may  mean,  Can  a  Convention,  by  virtue  of  its  ordinary  com 
mission —  to  recommend,  not  to  enact,  constitutional  changes 
1  For  an  exposition  of  this  duty  see  post.  Chapter  VII. 


TRUE  THEORY  OF  SUFFRAGE.  317 

—  divest  of  the  electoral  franchise,  by  its  direct  action,  any  per 
son  qualified  as  an  elector  by  the  existing  Constitution  ?  In  this 
sense,  it  is  evident,  the  power  does  not  exist,  for  reasons  similar 
to  those  already  given,  in  considering  the  power  of  a  Conven 
tion  to  make  removals  from  office.  The  question,  on  the  other 
hand,  may  mean,  Can  a  Convention  effect  the  disfranchisement 
of  subsisting  electors  by  an  indirect  proceeding,  as  by  constitu 
tional  provision,  altering  the  qualifications  for  the  exercise  of  the 
suffrage  ?  This  is  a  question  of  more  difficulty.  If  the  so- 
called  "  right  of  suffrage"  is  a  natural  right,  and  not  a  mere 
delegated  power  or  duty,  it  is  clear,  that  a  Convention  cannot 
rightfully  divest  of  it  persons  coming  within  the  limits  by  which 
it  is  defined.  But  if,  on  the  contrary,  it  is  no  right  at  all,  by 
nature,  but  rather  a  function  or  office,  with  which  certain  desig 
nated  classes  are  charged  by  the  sovereign,  for  its  own  purposes, 
it  is  equally  clear,  that,  for  what  are  deemed  sufficient  reasons, 
the  charge  may  be  withdrawn.  In  that  case,  inasmuch  as  the 
Convention  is  the  agency  through  which  the  sovereign  either 
effects  constitutional  changes  or  initiates  them,  reserving  to 
itself,  through  the  electors,  the  enactment  of  its  recommenda 
tions,  it  follows  that  that  body  may,  according  to  the  terms  of 
its  commission,  either  withdraw  or  recommend  the  withdrawal 
of  such  charge. 

§  336.  Which,  then,  is  the  true  theory  of  the  suffrage  ?  Is  its 
exercise  that  of  a  natural  right,  or  is  it  merely  the  performance 
of  a  duty,  resting  simply  upon  positive  law  ?  The  answer  to 
this  question  can  be  based  only  upon  presumptions,  and,  judg 
ing  by  them,  suffrage  is  not  a  natural  right.  In  the  first  place, 
there  is  the  presumption  arising  from  the  fact,  that  no  political 
community  has  ever  existed  in  which  the  right  to  vote  has  been 
conceded  to  be  the  natural  right  of  all  the  citizens.  I  mean, 
conceded,  not  as  a  matter  of  speculation,  but  as  one  of  practi 
cal  administration.  This  is  believed  to  be  true  in  the  ancient 
democracies,  as  it  has  been  in  those  modern  governments,  in 
which  circumstances  have  enabled  their  founders  to  carry  into 
effect  most  perfectly  the  theory  of  equal  rights.  In  the  cabin 
of  the  Mayflower  it  was  the  Pilgrim  fathers,  not  the  Pilgrim 
mothers,  who  framed  the  first  Puritan  commonwealth.  In  the 
second  place,  there  has  never  been  an  instance,  it  is  believed,  in 
which  a  State,  whatever  its  theories  of  the  suffrage  may  have 


318  TRUE  THEORY  OF   SUFFRAGE. 

been,  has  not  somewhere  drawn  a  line  of  exclusion  from  its 
actual  exercise,  and  drawn  it,  too,  above  the  point  which  marks 
the  extreme  limit  of  practicability.  In  other  words,  no  common 
wealth,  based  upon  popular  suffrage,  or  admitting  its  exercise 
at  all,  has  ever  allowed  it  to  the  utmost  extent  that  was  practi 
cable  under  the  circumstances.  Finally,  suffrage,  considered  as 
a  natural  right,  would  be  universal  suffrage ;  and  universal  suf 
frage  is  an  utter  impracticability.  For,  admitting  the  force  of 
the  argument  which  attributes,  by  the  law  of  nature,  an  equal 
right  to  vote  to  every  citizen,  nevertheless,  when  the  statesman 
comes  practically  to  establish  the  right,  insuperable  difficulties 
arise.  Some  are  too  weak  or  too  young  to  exercise  it  at  all, 
or  with  the  requisite  intelligence.  A  line  must  be  somewhere 
drawn.  Where  it  shall  be  drawn  is  a  question  of  expediency, 
to  be  determined  by  the  existing  government,  like  any  other 
measure  involving  mixed  questions  of  justice  and  of  policy. 
The  principle  of  exclusion  being  once  established,  whether  it 
shall  be  confined  to  considerations  of  age,  or  be  extended  to 
those  of  sex  or  social  condition,  is  a  matter  of  practical  detail 
to  be  settled  by  the  political  power. 

§  337.  The  "  right  of  suffrage  "  comes  thus  to  be  practically 
only  a  right  of  one  man  to  represent  many  other  men.  Over 
looking  the  absurdity  of  such  a  right,  if  asserted  as  a  natural 
right,  it  comes  at  once  into  conflict  with  another  right  existing 
equally  by  the  law  of  nature  —  the  right  of  the  State  to  deter 
mine  who  shall  and  who  shall  not  discharge  a  function,  which 
not  all  citizens  can  discharge.  But  a  right  of  one  man  to  do 
that  which  another  has  an  equal  right  to  prevent  him  from 
doing,  is  either  a  solecism  or  it  is  a  right  which  subsists  only 
upon  conditions  to  be  determined  by  that  other ;  in  other  words, 
a  right  which  is  such  only  when  it  rests  on  some  positive  law 
ordained  by  that  other. 

Thus  viewed,  it  is  evident,  that  in  the  present  condition  of 
mankind,  in  which,  for  the  public  good,  the  principle  of  exclu 
sion  must  be  exercised,  there  is  no  such  thing  as  a  right  of  suf 
frage.  Suffrage  is  not  a  right  at  all ;  it  is  a  duty,  a  trust,  en 
joined  upon,  or  committed  to,  some  citizens  and  not  to  others. 
The  only  rights  connected  with  the  exercise  of  the  suffrage,  are, 
first,  the  right  of  the  commonwealth,  the  collective  body  to  be 
administered,  for  good  or  for  evil,  by  the  electors,  to  determine 


CAN    CONVENTIONS   FILL   THEIR   OWN    VACANCIES  ?  819 

who  those  electors  shall  be ;  secondly,  the  right  of  every  citizen, 
without  distinction,  derived  to  him  through  the  commonwealth, 
to  be  fairly  and  adequately  represented  by  the  electors. 

The  conclusion  at  which  I  arrive  then  is,  that  a  Convention 
may,  by  constitutional  provision,  effect  the  disfranchisement  of 
existing  electors.  Of  course,  with  the  question  of  the  policy 
of  doing  so,  in  any  case,  I  do  not  concern  myself. 

§  338.  2.  Another  question  is,  Can  a  Convention  take  upon 
itself  the  function  of  the  electors  to  fill  vacancies  in  its  own 
ranks  ?  This  is  substantially  the  same  question  before  discussed 
in  relation  to  the  power  of  that  body  to  fill  vacancies  in  the  ordi 
nary  departments  of  the  government,1  and  should  receive  the 
same  answer  unless  a  different  one  ought  to  be  given,  because,  in 
the  case  of  appointing  to  an  executive  or  judicial  office,  it  would 
wrongfully  assume  the  relation  of  electors  to  a  third  body,  and 
in  the  other  case,  that  of  electors  to  itself.  In  the  case  last  sup 
posed,  the  Convention  would  be  pro  tanto  self-appointing,  and 
would  maintain  the  attitude  of  at  once  constituent  and  delegate, 
which  is  that  of  a  body  de  facto  sovereign.  So  that  the  two 
cases  would  differ,  but  only  in  the  degree  of  their  .common  im 
propriety;  the  exercise  by  a  Convention  of  the  power  to  fill 
its  own  vacancies  being  far  more  unwarranted  and  dangerous 
than  that  of  filling  vacancies  in  other  departments,  as  it  would 
more  flagrantly  violate  that  system  of  mutual  checks  which  is 
so  indispensable  to  the  safe  action  of  popular  institutions.  It  is 
evident,  that  of  all  possible  checks,  the  most  effectual,  amount 
ing  practically  to  the  power  of  complete  control,  is  that  of 
selecting  the  persons  to  constitute  the  body.  This  power  it  will 
never  do  for  the  electors  on  any  consideration  to  resign. 

§  339.  3.  The  principles  just  settled  enable  us  to  answer 
another  question,  namely,  Can  a  Convention  authorize  the  col 
leagues  of  resigning  or  deceased  members  to  name  their  succes 
sors  ?  It  is  clear  that,  on  general  principles,  what  a  Convention 
cannot  do  as  a  whole,  it  cannot  authorize  any  of  its  members  to 
do.  But  suppose,  as  was  the  case  in  the  Virginia  Convention 
of  1829,  the  Act  of  the  General  Assembly,  under  which  the 
body  convened,  contained  a  special  authorization  to  fill  vacan 
cies  in  that  manner,  could  it  then  be  allowed  by  the  Conven 
tion  ?  The  answer  must  depend  on  the  power  of  the  legisla- 

1  Ante,  §  325. 


320  CAN   CONVENTIONS   FILL   THEIR   OWN   VACANCIES? 

ture  to  make  such  a  provision,  of  which,  to  say  the  least,  there 
is  much  doubt.  The  matter  lies  in  a  nutshell,  thus :  Where 
Constitutions  have  given  to  legislative  bodies  power  to  call  Con 
ventions,  and  have  specified  the  electors  of  delegates  thereto, 
they  have  with  great  uniformity  named  the  persons  qualified  to 
eote  at  the  general  State  elections.1  Where  no  constitutional 
provision  has  existed  governing  the  case,  the  same  class  has 
usually  been  designated  by  law.2  Such  has  been  the  practice. 
Theoretical  principles  indicate  with  the  utmost  clearness  that  no 
other  class  could  properly  be  permitted  to  act  as  electors  in  such 
a  case.  Could  a  legislature  itself  name  the  delegates  to  con 
stitute  the  Convention  ?  That  would  be  to  make  of  itself  the 
people,  to  violate  all  the  analogies  of  our  republican  system,  and 
to  trample  under  its  feet  the  safeguards  of  our  liberties.  For, 
if  it  could  appoint  the  delegates,  it  might  name  a  committee 
of  its  own  members,  or  of  others,  small  in  number,  and  likely  to 
be  equally,  in  either  case,  subservient  to  the  power  which  cre 
ated  it.  A  Convention  thus  composed  would  virtually  be  but 
the  legislature  itself,  which  would  in  that  case  possess  the  un 
controllable  powers  of  the  English  Parliament,  those,  namely, 
of  constructing  the  government,  and  then  of  regulating  its  ad 
ministration.  It  cannot  be,  then,  that  a  legislature  has  power 
to  remit  the  election  of  conventional  delegates  in  the  first  instance 
to  any  body  of  persons  but  the  electors.  And  if  not  in  the  first 
instance,  it  is  equally  doubtful  whether  it  could  do  it  afterwards 
to  fill  vacancies.  These  ought  to  be  filled  by  the  constituencies 
left  unrepresented,  which  are  not  the  colleagues  of  the  retired 
members,  but  the  electors  in  the  proper  districts.  These  con 
siderations  are  confirmed  by  the  observation  that  exceptional 
modes,  even  if  convenient,  cannot  in  any  high  sense  of  the 
term  be  said  to  be  necessary.  The  absence  of  a  delegation 
is  not  likely  to  be  a  very  serious  evil,  in  case  no  provision  by 
law  for  calling  a  new  election  has  been  made  in  a  form  that  is 
free  from  objection,  and  if  the  power  to  order  one  without  such 
a  law  be  doubted. 

§  340.     4.  If  a  Convention  cannot,  when  vacancies  occur  in 

its  ranks,  fill  them  itself,  or  authorize  or  permit  a  part  of  its 

members  to  fill  them,  can  it  issue  precepts  to  the  constituencies 

of  the  retired  delegates  directing  new  elections  to  fill  them? 

1  See  ante,  §§  262,  263.  2  ibid. 


CAN   CONVENTIONS   ISSUE   PRECEPTS   DIRECTING   ELECTIONS  ?     321 

This  question  touches  to  the  bottom  the  powers  of  Conventions 
in  relation  to  the  electoral  bodies  which  depute  them,  and  will 
therefore  be  considered  at  length.  It  arose  as  a  practical  ques 
tion  in  the  Massachusetts  Convention  of  1853,  and  I  cannot, 
perhaps,  better  illustrate  the  principles  by  which  it  ought  to  be 
decided,  than  by  presenting  an  outline  of  the  facts  of  that  case, 
and  of  the  discussions  which  it  elicited. 

§  341.  The  Hon.  Henry  Wilson  having  been  elected  a  dele 
gate  for  both  the  town  of  Natick  and  the  town  of  Berlin,  chose 
to  sit  for  the  former,  whereupon  an  order  was  passed  that  a  no 
tice  be  given  by  the  Secretary  of  the  Convention  to  the  town 
of  Berlin,  that  the  Hon.  Henry  Wilson,  who  was  returned  as  a 
delegate  from  that  town,  declined  to  act  in  that  capacity.  There 
upon  the  Hon.  B.  F.  Butler  submitted  a  form  of  a  notice  to  be 
sent  by  the  Secretary,  as  follows :  — 

"  HALL  OF  TFE  CONSTITUTIONAL  CONVENTION,  > 
"  BOSTON,  May  — ,  1853.      > 

"  To  the  Selectmen  of  the  Town  of  Berlin  : 

"  GENTLEMEN,  —  The  Hon.  Henry  Wilson,  late  delegate  for 
Berlin  in  the  Convention  for  revising  the  Constitution,  having 
tendered  his  resignation  as  such  delegate,  which  has  been  ac 
cepted  by  the  Convention,  and  his  seat  being  thereby  vacated, 
I  am  directed,  by  a  vote  of  the  Convention,  to  request  you  to 
convene  the  qualified  electors  of  your  town,  as  soon  as  may  be 
with  a  due  regard  to  notice,  in  order  to  their  electing  and  deput 
ing  a  delegate  to  represent  them  in  this  Convention,  in  the  man 
ner  prescribed  by  the  second  section  of  the  Act  calling  the  Con 
vention,  adopted  by  the  people  on  the  second  Monday  in  No 
vember,  A.  D.  1852. 

I  am,  &c." 

[Signed  by  the  Secretary.] 

This  form  involved  an  evident  departure  from  the  principle  of 
the  order  just  adopted,  inasmuch  as  it  contained  an  assertion 
of  a  threefold  power  in  the  Convention,  of  which  no  trace 
was  to  be  found  in  the  order :  first,  a  power  to  direct,  or  at 
least  to  request,  the  town  authorities,  and  through  them  the 
electors,  to  exercise  their  electoral  function  at  a  particular  time, 
and  upon  a  particular  subject;  secondly,  the  power  to  accept, 

21 


322      CAN   CONVENTIONS   ISSUE   PRECEPTS   DIRECTING   ELECTIONS? 

the  resignation  of  delegates  duly  elected  to  its  own  body ;  and, 
thirdly,  the  power  to  direct  the  electors  as  to  the  manner  in 
which  they  were  to  proceed  to  elect  their  delegates  to  the  Con 
vention,  as,  that  it  should  be  done  in  conformity  to  a  particular 
Act  of  the  legislature. 

§  342.  The  question  being  upon  the  adoption  of  this  form,  a 
substitute  was  moved,  that  in  notifying  the  town  of  Berlin  of 
the  vacancy,  the  Secretary  be  directed  to  forward  to  that  town 
a  certified  copy  of  the  order  adopted  by  the  Convention  upon 
that  subject.  This  substitute  was  rejected,  and  the  form  pro 
posed  by  Mr.  Butler  adopted,  opposition  being  made  at  every 
step,  on  the  ground  that  it  was  beyond  the  power  of  the  Con 
vention  even  to  notify  the  town  of  the  vacancy,  much  more  to 
direct  the  election  of  a  delegate  to  fill  it.  On  the  following 
day  a  reconsideration  of  the  last  vote  was  moved,  upon  which 
arose  a  very  long  and  interesting  discussion  of  all  the  questions 
involved,  but  ending  finally  in  a  vote  of  nearly  two  to  one  re 
fusing  to  reconsider  the  vote  adopting  the  form  of  notice  pro 
posed  by  Mr.  Butler. 

Of  the  three  questions  indicated  as  involved  in  the  form  of 
notice  adopted,  the  first,  as  to  the  power  of  a  Convention  to 
issue  a  precept,  request,  or  notice  to  a  town,  with  a  view  to  in 
duce  it  to  fill  a  vacancy  in  its  delegation,  is  the  only  one  I  pur 
pose  here  to  consider. 

§  343.  That  the  Convention  possessed  the  power  to  issue 
such  a  precept  was  claimed  by  Mr.  Butler  and  others,  as  evi 
dent  from  the  nature  and  functions  of  that  body. 

Thus,  in  favor  of  the  form  of  notice  presented  by  him,  Mr. 
Butler  said :  — 

"  We  are  told  that  we  assume  the  power,  and  that  we  are 
merely  the  agents  and  attorneys,  of  the  people.  Sir,  we  are  the 
delegates  of  the  people,  chosen  to  act  in  their  stead.  We  have 
the  same  power  and  the  same  right,  within  the  scope  of  the 
business  assigned  to  us,  that  they  would  have,  were  they  all 
convened  in  this  hall.  In  my  judgment,  we  have  every  inci 
dental  power  necessary  to  do  the  business  of  the  people.  If  the 
people  were  all  assembled  here  in  their  primary  capacity,  they 
would  surely  have  the  capacity  to  notify  unrepresented  towns, 
that  they  might  participate  in  the  business  of  the  Convention  ; 
and,  by  implication,  we  have  just  the  same  powers,  duties,  and 


CAN   CONVENTIONS   ISSUE   PRECEPTS   DIRECTING   ELECTIONS?      323 

necessities,  no  more  and  no  less,  conferred  upon  us,  that  the 
people  would  have  were  they  here  in  their  primary  capacity. 
We  are  not  acting  as  a  court  of  referees.  The  power  with 
which  we  are  vested  comes  not  from  the  legislative  government ; 
but  the  people,  through  the  agency  of  the  ballot-box,  have  given 
it  to  us.  We  are  not  men  who  have  no  interest  in  the  matter, 
but  have  all  the  powers  of  the  people  whom  we  represent.  If 
they  chose,  being  assembled  in  their  primary  capacity,  to  add  to 
their  number  by  admitting  a  portion  of  the  people  at  first  not 
assembled  with  them,  could  they  not  do  it  ?  And,  if  they  now 
see  fit  to  send  men  to  act  with  us,  have  they  not  the  power  to 
do  it  ?  I  look  upon  this  whole  proceeding  of  calling  a  Conven 
tion  as  a  mode  of  revolution  by  which  we  may  peaceably  ac 
complish  that  which  in  other  countries  is  attained  by  the  sword 
and  by  force.  Here,  through  the  medium  of  the  ballot-box,  the 
people  take  to  themselves  the  supreme  control  of  the  whole 
machinery  of  the  government,  and  they  determine  who  shall 
come  here  and  act  for  them."  1 

§  344.  On  the  same  side,  professedly,  but  shifting  the  ground 
assumed  by  Mr.  Butler,  if  not,  in  substance,  surrendering  the 
power  claimed  by  him,  Mr.  B.  F.  Hallett  said :  — 

"  Speaking  strictly  with  reference  to  the  authority  under  which 
this  Convention  is  assembled,  I  confess  that  I  have  great  doubts 
whether  the  Convention  has  power  to  send  to  any  town  an  or 
der  or  a  direction  in  the  form  of  law,  calling  upon  them  to  send 

a  member  to  this  Convention Taking  this  question   as 

the  issue,  as  to  the  power  of  the  Convention,  it  resolves  itself 
entirely,  in  my  mind,  into  the  simple  power  of  a  body  to  repro 
duce  itself — that  is,  to  fill  vacancies  occurring  within  itself  by 
death  or  resignation  ;  and  whether  that  power  be  or  be  not  inci 
dent  to  such  a  body,  is  a  matter  which  may  admit  of  different 
opinions,  but  with  regard  to  which,  it  seems  to  me,  the  prepon 
derance  of  opinions  must  be,  that,  in  the  absence  of  a  prohib 
ition  to  fill  such  vacancy,  and  where  no  mode  is  provided  by 
law,  the  body  must  necessarily  have  the  power  to  supply  such 
deficiency  —  that  is,  to  reproduce  itself.  In  this  point  of  view, 
therefore,  the  resignation  of  a  delegate,  causing  a  vacancy, 
would  stand  differently  from  a  call  upon  towns  to  send  dele 
gates  here  in  cases  where  no  vacancies  had  existed  except  such 
l  Deb.  Mass.  Cony.,  1853,  Vol.  I.  p.  78. 


324      CAN    CONVENTIONS   ISSUE   PRECEPTS   DIRECTING   ELECTIONS  ? 

as  arose  from  a  mere  failure  of  a  town  to  elect  a  delegate.  I 
should  be  content,  therefore,  to  take  this  proposition  as  a  proper 
one,  and  invite  the  town  of  Berlin  to  send  a  delegate  here, 
upon  the  ground  that  we  as  a  body  have  a  right  to  fill  our  own 
vacancies,  occurring  since  our  organization  as  a  body  ;  and  that 
is  all  the  power  we  have  got,  if  we  have  got  any,  in  the  pre 
mises.  I  am  perfectly  clear  that  we  have  no  direct  power  under 
the  Convention  Act  of  1852,  in  relation  to  supplying  any  vacan 
cies  in  this  Convention.  That  is  our  charter ;  it  is  the  Consti 
tution  of  this  body  of  delegates,  and  we  must  act  under  it."  l 

§  345.  To  these  arguments,  so  discrepant  in  their  principles, 
the  Hon.  Marcus  Morton  replied  as  follows  :  — 

"  We  are  a  delegated  body ;  if  we  have  any  authority  it  has 
been  delegated  to  us.  We  are  the  agents  or  the  attorneys  of 
the  people  of  this  Commonwealth,  and,  if  we  have  any  power 
at  all,  it  comes  from  them,  and  is  contained  in  the  power  of 
attorney  which  authorizes  us  to  come  here.  If  we  have  the 
power  or  authority  to  act  in  this  matter,  let  any  gentleman  put 
his  finger  upon  the  passage  in  the  Act  and  point  it  out.  And, 
if  the  authority  cannot  be  found,  then  where  do  we  get  it  ?  In 
acting  upon  this  subject  we  should  be  assuming  power  which 
has  not  been  delegated  to  us.  It  would  be  a  downright  usurpa 
tion,  and  it  would  be  more  than  a  usurpation  of  power  by  a 
legislative  body,  because  there  is  nobody  behind  us  to  make  it 
right.  There  is  no  way  of  correcting  the  evil.  If  gentlemen 
assume  the  power  to  act  in  this  matter, — if  the  Convention  is 
to  send  out  precepts  for  new  elections,  and  to  admit  individuals 
who  may  be  chosen  in  this  manner,  they  may  assume  power  to 
send  for  the  Common  Council  of  the  City  of  Boston,  and  bring 
them  in  here  to  act  with  us  and  to  participate  in  our  delibera 
tions,  and  nobody  can  countervail,  —  nobody  can  set  it  aside. 
....  If  we  have  power  to  act  in  this  case,  it  is  contained  in 
the  Act  by  which  we  are  convened  ;  and  now  I  ask  gentlemen 
to  point  out  the  power  in  that  Act.  I  can  find  a  strong  indi 
cation  that  no  such  power  was  intended  to  be  given.  All  that 
has  been  brought  to  show  the  existence  of  such  a  power  has 
been  drawn  from  precedent  and  the  practice  of  other  bodies."  1 

§  346.  To  the  same  effect  was  the  speech  of  Hon.  Joel 
Parker.  He  said  :  — 

1  Deb.  Mass.  Conv.,  1853,  Vol.  I.  p.  131. 


CAN   CONVENTIONS   ISSUE   PRECEPTS    DIRECTING    ELECTIONS  ?      325 

u  And  now  two  questions  seem  to  arise.  One  is,  whether 
any  action  can  rightfully  be  taken  for  the  purpose  of  filling  the 
vacancy,  and  having  another  delegate  elected  to  represent  the 
town  of  Berlin  ;  and,  if  such  action  may  be  taken,  the  question 
occurs  upon  the  form,  whether  it  should  be  by  a  writ,  or  by  a 
notice,  that  we  will  admit  the  delegate  whom  the  town  shall 
elect,  and  who  shall  present  himself  here,  claiming  the  right  to  a 
seat  by  virtue  of  that  election.  In  relation  to  this  last  question 
I  have  no  difficulty.  So  far  as  the  mere  form  is  concerned,  it 
seems  to  me  to  be  altogether  immaterial.  I  have  not  been  per 
suaded  by  the  remarks  of  the  gentlemen  who  have  preceded  me, 
that  it  would  not  be  competent,  if  a  vacancy  exists  which  can 
rightfully  be  filled,  for  the  Convention  to  issue  a  writ  or  precept 
to  the  town  of  Berlin  to  elect  a  member ;  but  a  mere  notice  to 
that  town  that  a  vacancy  exists,  would  be  equally  effective  of 
that  object,  in  my  opinion.  If  the  town  of  Berlin  have  a  right, 
upon  the  resignation  of  their  delegate,  to  proceed  to  a  further 
election,  they  would  have  the  same  right  upon  receiving  a 
notice  that  a  delegate  coming  here  and  claiming  a  seat  in  the 
Convention  would  be  admitted  as  a  matter  of  right.  And,  if  a 
writ  should  be  issued,  I  do  not  understand  that  it  would  confer 
any  power  upon  the  town  ;  it  would  be  nothing  more  than 
issuing  a  precept  in  that  particular  form,  to  signify  to  the  town 
that  they  might  elect,  and  that  their  delegate  would  be  ad 
mitted  when  he  presented  himself.  We  are  to  consider  this 

question,  Mr.  President,  solely  as  a  question  of  right But 

as  it  comes  to  us  as  a  question  of  right,  we  are  called  upon  to 
determine  what  the  right  is. 

"  If  we  are  in  a  state  of  revolution,  —  peaceful  and  bloodless, 
but  still  a  revolution,  —  I  must  say  that  I  know  not  what  limit 
there  is  to  the  power  of  a  revolution,  when  it  is  brought  into 
exercise  ;  and,  if  the  question  is  to  be  put  upon  that  basis,  .  .  . 
I  shall  not  deny  the  power  of  a  revolution.  The  town  of  Ber 
lin  may  be  represented,  and  anybody  else  may  be  admitted  as  a 
delegate  whom  the  people  may  choose  to  send  here.  If  we  are 
a  revolutionary  body,  acting  without  a  Constitution,  or  any 
thing  of  that  nature  to  guide  us,  —  if  citizens  are  to  come  here 
and  act  their  pleasure,  without  regard  to  the  manner  in  which 
they  are  proceeding,  they  may  admit  one  person  or  another  to 
1  Deb.  Mass.  Cony.,  1853,  VoL  I.  p.  74. 


320      CAN    CONVENTIONS   ISSUE    PRECEPTS   DIRECTING   ELECTIONS? 

take  part  in  that  revolution.  The  whole  community  may  take 
part  in  it,  and  the  question  would  come  up,  Where  are  you  to 
find  room  for  them  to  assemble  and  carry  on  their  operations  ? 
Sir,  it  is  well  known  that  the  argument  has  been  advanced  that 
this  Convention  was  revolutionary  in  its  character,  because  the 
Constitution  provided  no  such  mode  in  which  a  Convention 
could  legally  assemble  ;  that  there  was  one  mode  provided  by 
the  Constitution  for  the  revision  of  that  instrument,  and  any 
other  mode  was  in  its  nature  revolutionary.  For  myself  person 
ally,  I  do  not  entertain  that  opinion.  I  believe  this  Convention 
to  have  been  lawfully  assembled,  and  that  it  is  bound  to  pro 
ceed  according  to  law;  and  that,  when  it  departs  from  law 
knowingly  and  understandingly,  then  will  its  proceedings  be 
revolutionary  in  their  nature."  1 

§  347.   To  this  discussion  I  shall  add  but  a  single  observation. 

Supposing  the  power  in  question  not  to  have  been  given  ex 
pressly  in  the  Act  calling  the  Convention,  and  looking  at  the 
question  of  right  alone,  has  a  Convention,  by  virtue  simply  of  its 
essential  nature  and  functions,  power  to  issue  precepts  to  the 
electors  in  the  case  of  a  vacancy,  directing  an  election  to  fill  it  ? 
It  certainly  has  no  such  power,  unless  we  invert  all  our  concep 
tions  of  the  office  and  relations  of  the  two  bodies.  To  accord 
that  power  to  a  Convention,  in  such  a  sense  as  that  its  mandate 
would  be  binding  on  the  electors,  is  to  suppose  the  former  to  be, 
if  not  sovereign,  an  agency  of  the  sovereign  with  general  dis 
cretionary  powers  of  a  legislative  character,  beyond  the  scope  of 
its  special  business  —  to  be,  in  short,  strictly  a  legislature.  On 
the  contrary,  as  we  have  seen,  both  reason  and  authority  concur 
in  assigning  to  the  Convention  a  particular  function,  limited  by 
the  Act  under  which  it  convenes,  which  is  its  charter  or  Con 
stitution  —  a  peculiarity  of  that  body  which  will  be  more  fully 
illustrated  in  a  subsequent  part  of  this  chapter.  If  this  be  a 
correct  estimate  of  the  nature  of  Conventions,  the  remark  of 
Judge  Parker  is  just,  that  it  is  essentially  immaterial  what  form 
the  precept  or  notice  to  the  town  might  assume.  It  might  be  a 
writ  directing,  or  a  notice  requesting,  that  an  election  should  be 
held  to  fill  the  vacancy  in  its  ranks.  But  in  neither  form  would 
it  be  of  the  least  binding  force.  It  would  be,  in  substance, 
merely  an  extra-official  intimation  that  the  Convention  would 
1  Deb.  Mass.  Conv.,  1853,  Vol.  I.  p.  83. 


ELECTIONS  TO  FILL  VACANCIES.    WHEN  AND  HOW  TO  BE  MADE.     327 

acquiesce  in  whatever  action  the  electors  should  deem  them 
selves  authorized  to  take.  The  real  power,  if  it  existed  at  all, 
would  be  in  the  electors,  and  would  find  its  source  in  the  exist 
ing  Constitution  and  laws,  and  not  in  the  mandate  of  the  Con 
vention. 

§  348.  5.  It  being  determined  that  if  a  vacancy  can  be  filled 
at  all,  it  must  be  done  by  the  electors,  by  virtue  of  power  de 
rived  not  from  the  Convention,  but  from  some  other  agent  of 
the  sovereign,  as  the  legislature,  the  next  question  —  seemingly 
unrelated  to  the  subject  of  this  treatise,  but  necessary  to  a  com 
plete  discussion  of  the  question  next  following — is,  Can  the 
electors  fill  such  a  vacancy  at  any  time  and  in  any  manner  they 
may  think  fit,  or  must  they  look  to  the  law  for  their  power  to 
act,  and  consequently  conform  strictly  to  its  provisions  ? 

If  we  have  not  mistaken  the  relations  of  the  electors  to  the 
sovereign,  and  to  the  several  agencies  employed  by  the  sover 
eign  to  conduct  the  government,  it  is  clear  that  little  discretion 
is  left  to  them  in  the  discharge  of  their  functions,  except  as  to 
the  individuals  whom  they  shall,  within  legal  limits,  select  to  fill 
the  offices  of  the  State.  Their  duties  are  always  prescribed  by 
the  Constitution,  or  by  some  statute  passed  in  pursuance  of  it, 
as  that,  on  such  a  day  or  days,  the  electors  shall  assemble  and 
choose  citizens,  having  determinate  qualifications,  for  particular 
offices  or  duties.  In  obeying  this  mandate  they  discharge  a 
trust.  To  allow  them  to  enlarge  or  vary  the  terms  of  the  trust 
would  be  to  subvert  the  relations  of  dependence  imposed  by  the 
Constitution,  and  to  invest  them  with  the  power  of  self-direc 
tion —  that  is,  measurably,  of  sovereignty.  To  some  of  the 
agencies  of  government,  the  sovereign,  indeed,  gives  large  dis 
cretionary  powers ;  but  then  those  powers  are  of  the  essence  of 
the  grant,  and  not  to  use  them  would  be  to  frustrate  the  purpose 
of  the  political  society  which  made  it.  The  grant  of  legislative 
power  is  a  grant  of  that  kind.  With  the  electors  the  case  is 
different.  Their  functions,  as  we  have  seen,  are  twofold  :  first,  to 
elect  persons,  generally  of  their  own  number,  to  office  ;  and,  sec 
ondly,  to  pass,  affirmatively  or  negatively,  upon  proposed  changes 
in  the  fundamental  law.  In  the  latter,  which  is  an  occasional 
function,  they  are  invested  with  a  limited  discretion,  a  discretion 
either  to  approve  or  reject ;  in  the  former  they  have  no  discre 
tion  as  to  measures,  but  only  to  name,  out  of  the  whole  body  of 


328    ELECTIONS  TO  FILL  VACANCIES.     WHEN  AND  HOW  TO  BE  MADE. 

eligible  citizens,  those  who  are  to  fill  the  public  offices.  And  it 
is  apparent  that  they  could  not  safely  be  intrusted  with  any 
greater  power.  Never  assembling  en  masse,  but  exercising  their 
functions  in  isolated  fragments,  without  concert  or  intercon 
nection,  their  determinations  could  have  coherence  and  efficacy 
only  when  made  in  subordination  to  a  less  numerous  body,  pos 
sessed  of  adequate  powers  of  looking  before  and  after,  of  delib 
eration,  as  well  as  of  announcing  authoritatively  the  sovereign 
will.  Such  a  body  only  is  the  legislature,  to  which,  in  the  ab 
sence  of  constitutional  provisions,  is  committed  the  duty  of  per 
forming  that  very  office. 

§  349.  Now,  to  apply  these  principles  practically,  take  the 
case  of  the  Massachusetts  Convention  of  1853,  last  referred  to. 
The  Act  of  the  legislature  calling  that  Convention,  provided,  as 
such  Acts  commonly  do,  that  the  inhabitants  of  the  cities  and 
towns  within  the  State  entitled  to  vote  for  representatives  to  the 
General  Court,  should  assemble  on  the  first  Monday  of  March, 
A.  D.  1853,  and  elect  one  or  more  delegates,  &c.,  Sec.  1. ;  and  that 
"  the  persons  so  elected  delegates  "  should  meet  in  Convention  in 
Boston  on  the  first  Wednesday  in  May,  &c.,  Sec.  3.  Under 
this  Act,  would  any  delegates,  not  "  so  elected,"  be  entitled  to 
seats  in  the  Convention  ?  Evidently  not.  But  what  is  com 
prised  in  the  terms  "  so  elected  ?  "  The  answer,  it  seems,  should 
be,  "  elected  at  the  time  and  place,  in  the  manner,  out  of  and  by 
the  class  of  persons  respectively  prescribed  in  the  Act."  If,  in 
regard  to  any  one  of  these  particulars,  as,  for  instance,  the  time 
of  holding  the  election,  any  departure  from  the  Act  be  allow 
able,  who  is  to  determine  when  the  electors  in  their  several  dis 
tricts  shall  meet?  Must  the  meetings  in  the  several  towns  and 
cities,  if  held  on  another  day  than  that  appointed  in  the  Act,  be 
called  or  "  notified  "  by  the  public  authorities  in  the  same  man 
ner  as  the  regular  meetings  ?  If  so,  how  can  this  necessary 
preliminary  be  secured  ?  The  public  authorities  might,  in  some 
places,  in  the  absence  of  positive  instructions  by  law,  refuse  to 
act.  Would  such  a  refusal  be  a  breach  of  official  duty  ?  That 
could  hardly  be  maintained,  since,  if  the  time  were  not  fixed  by 
a  law  binding  upon  all,  or  were  fixed  by  a  law  whose  terms 
could  be  disregarded,  it  must  be  because  the  time  of  holding 
the  meetings  was  intended  to  rest  in  the  discretion  of  those 
authorities,  and  they  ought  not  to  be  blamed  for  exercising  it. 


CAN  CONVENTIONS  RECEIVE  DELEGATES  IRREGULARLY  ELECTED  ?     329 

An  objection  of  scarcely  less  magnitude  would  be,  that  if  elec 
tions  were  to  be  called  at  the  discretion  of  the  town  or  city 
authorities  in  respect  to  the  time  of  their  assembling,  as  each 
might  act  independently,  the  electors  would  be  likely  to  assem 
ble  on  different  days,  and  thus  render  abortive  some  of  the  most 
important  safeguards  of  the  elective  franchise. 

Again :  when  an  election  has  once  been  held  according  to  the 
terms  of  the  Act,  the  power  of  the  electors  has  been  exhausted. 
It  is  impossible  to  hold  that  they  may,  on  any  accident  giving 
rise  to  a  vacancy  in  the  office  filled  by  them,  of  their  own  mo 
tion  reassemble  to  fill  it  again.  If,  on  the  other  hand,  at  the 
time  and  place  appointed  for  the  election,  they  failed  to  exercise 
the  power  given  by  the  Act,  how  can  it  be  contended  that  they 
may,  at  their  will,  attempt  to  repair  the  deficiency  in  their  repre 
sentation  ?  Such  a  proceeding  would  most  clearly  be  an  abuse 
of  their  position  and  power  as  electors.  In  a  word,  the  difficul 
ties  attending  the  allowance  of  spontaneous  and  unconnected 
elections,  at  the  instance  of  the  local  authorities,  without  the 
authorization  of  law,  are  so  great,  that  the  right  of  the  electors 
to  hold  them  must  be  wholly  denied. 

§  350.  6.  Another  question,  related  to  the  foregoing,  is,  Can 
a  Convention  receive,  as  lawful  delegates,  persons  elected  at  a 
time  or  in  a  manner  not  provided  by  law  ?  If  we  have  suc 
ceeded  in  reaching  sound  conclusions  in  relation  to  the  questions 
thus  far  discussed,  the  answer  to  this  is  at  hand.  If  the  Con 
vention  cannot  itself  fill  its  own  vacancies,  and  if  the  electors 
cannot,  without  special  authority  of  law,  or  cannot  in  contra 
vention  of  law,  fill  them,  the  former  would  have  no  power  to 
accept  as  lawfully  elected  delegates  persons  unlawfully  elected 
by  the  latter.  Two  bodies  of  functionaries  cannot,  by  clubbing 
their  separate  usurpations,  give  a  legal  character  to  what  is 
otherwise  illegal.  The  Convention  is  usually,  by  the  Act  calling 
it,  or  by  the  customary  law  of  such  bodies,  made  the  judge  of 
the  elections  of  its  own  members;  that  is,  it  is  authorized  to 
pronounce  on  the  conformity  to  law  of  the  proceedings  by  which 
its  ranks  are  filled  ;  a  power  which,  of  course,  leaves  to  it  prac 
tically  a  large  discretion  ;  but  that  discretion  is,  like  that  of  a 
judge,  a  legal  one,  not  its  arbitrary  will.  When  a  delegate, 
therefore,  presents  himself  and  claims  a  seat,  if  he  cannot  ex 
hibit  evidence  of  his  having  been  elected  according  to  law,  he 


330    CAN   CONVENTIONS   LIMIT  THE   DISCRETION   OF  THE   ELECTORS? 

ought  to  be  rejected.  The  Convention  owes  to  the  electors  no 
such  courtesy  as  to  wink  at  their  usurpations  of  power. 

§  351.  7.  The  next  question,  involving  the  relations  of  Con 
ventions  to  the  electors,  is,  Can  a  Convention  limit  the  discre 
tion  of  the  electors  in  the  discharge  of  their  appropriate  duties  ; 
as,  by  determining  what  classes  of  persons  they  may,  and  what 
classes  they  shall  not,  elect  to  office  ? 

This  question  might  have  been  discussed  appropriately  in  a 
preceding  part  of  this  chapter,  in  which  were  considered  the 
relations  of  Conventions  to  the  sovereign.  Indeed,  it  has  very 
often  been  put  in  this  form  :  Can  a  Convention  limit  or  restrict 
the  sovereign  in  the  choice  of  its  servants,  as  by  requiring  that 
they  shall  be  citizens  of  a  prescribed  age  or  nationality,  to  be 
eligible  to  office  ? 

We  will  consider  the  question  in  both  the  forms  indicated, 
beginning  with  the  latter. 

First.  Can  a  Convention  restrict  the  sovereign  in  the  choice 
of  its  servants  ?  Strictly  speaking,  the  question  is  absurd.  The 
Convention  is  but  a  subordinate,  whilst  the  sovereign  is  the 
superior,  from  whom  is  derived  all  its  power  to  act,  and  without 
whose  ratifying  voice  what  it  does  is  wholly  destitute  of  validity. 
The  one  is  a  mere  agent,  with  power  only  to  do  what  it  is  bid 
den  ;  the  other,  the  supreme  source  of  power  in  the  state,  able, 
within  the  limits  certainly  of  a  moral  competence,  to  do  any 
thing  it  may  please.  Of  course,  then,  a  Convention  cannot 
really,  to  any  extent,  bind  the  sovereign.  It  may  recommend 
constitutional  provisions,  which,  if  adopted  and  put  in  force  by 
the  sovereign,  will  bind  the  latter,  so  far  forth  as  it  can  be  bound 
at  all,  but  in  that  case  it  would  be  the  sovereign  which  would 
limit  or  restrict  itself,  not  the  Convention  which  would  bind  it. 
And  that  the  sovereign  can  limit  or  restrict  itself  is  a  well-set 
tled  principle.  The  bonds,  however,  by  which  it  can  bind  itself, 
are  doubtless  only  moral  ones,  since  under  whatever  limitations 
the  nation  may  have  placed  itself  by  voluntary  regulation,  it 
has  evidently  at  all  times  the  physical  ability  to  disregard  them. 
In  one  view,  however,  those  bonds  are  of  immense  practical 
efficacy ;  it  is  only  the  sovereign  body  which  can  disrupt  them 
with  impunity.  Its  servants,  the  various  departments  of  the 
government,  are  obliged  to  respect  them  or  render  themselves 
obnoxious  to  punishment  for  disobedience.  As  an  admirable 


CAN   CONVENTIONS   LIMIT   THE   DISCRETION   OF   THE   ELECTORS?     331 

exposition  of  the  truth  that  the  sovereign  body  can  restrict  itself, 
I  extract  a  passage  from  an  argument  made  by  Daniel  Web 
ster,  in  the  celebrated  case  of  Luther  v.  Borden,  in  the  Supreme 
Court  of  the  United  States.1 

He  said :  "  I  have  said  that  it  is  one  principle  of  the  Ameri 
can  system  that  the  people  limit  their  governments,  National 
and  State.  They  do  so  ;  but  it  is  another  principle,  equally 
true  and  certain,  and,  according  to  my  judgment  of  things, 
equally  important,  that  the  people  often  limit  themselves.  They 
set  bounds  to  their  own  power.  They  have  chosen  to  secure 
the  institutions  which  they  establish  against  the  sudden  impulses 
of  mere  majorities.  All  our  institutions  teem  with  instances  of 
this."  After  specifying  the  5th  Article  of  the  Federal  Constitu 
tion,  restricting  the  right  of  the  people  to  amend  that  instru 
ment,  he  continued:  "But  the  people  limit  themselves  also  in 
other  ways.  They  limit  themselves  in  the  first  exercise  of  their 
political  rights.  They  limit  themselves  by  all  their  Constitu 
tions,  in  two  important  respects  :  that  is  to  say,  in  regard  to  the 
qualifications  of  electors,  and  in  regard  to  the  qualifications  of 
the  elected.  In  every  State,  and  in  all  the  States,  the  people 
have  precluded  themselves  from  voting  for  everybody  they  might 
wish  to  vote  for ;  they  have  limited  their  own  right  or  choosing 
....  They  have  also  limited  themselves  to  certain  prescribed 
forms  for  the  conduct  of  elections.  They  must  vote  at  a  partic 
ular  place,  at  a  particular  time,  and  under  particular  conditions, 
or  not  at  all." 

§  352.  Secondly.  Taken  in  the  other  form,  namely,  Can  a 
Convention  restrict  the  electors  as  to  the  persons  they  shall 
choose  to  fill  the  public  offices  ?  the  question,  on  the  principles 
before  announced,  is  too  clear  for  argument.  Since,  whatever  a 
Convention  should  regularly  do  by  recommending  to  the  sover 
eign,  if  adopted  by  the  latter,  would  be  the  act  of  that  sovereign, 
it  certainly  might  restrict  the  choice  of  public  servants  to  be 
made  by  the  electors  to  any  class  it  might  deem  best  fitted  for 
that  duty.  As  the  sovereign  is  distinct  from  the  electors,  who, 
like  all  officers  of  the  government,  are  its  agents,  it  may  of 
course  dictate  law  or  rules  of  action  to  them  as  to  the  others, 
and  it  can  without  doubt  do  it  through  a  Convention.  But  the 
reservation  must  be  again  made,  that  in  affirming  that  a  Con- 
l  7  How.  R.  1,  contained  in  Vol.  VI.  of  Webster's  Works,  pp.  217,  224. 


332     CAN   CONVENTIONS   LIMIT   THE   DISCRETION    OF   THE   ELECTORS? 

vention  has  power  to  limit  or  restrict  the  electors,  it  is  meant 
that  it  may  do  so  by  constitutional  provision,  enacted  according 
to  the  principles  of  our  Constitutions;  that  is  to  say,  by  the 
Convention  recommending  it,  the  fiat  being  left  to  the  people, 
or  by  the  Convention  alone  enacting  it  directly,  as  its  commis 
sion  should  determine. 

§  353.  In  one  or  other  of  its  two  forms,  this  question  has  sev 
eral  times  been  made  the  subject  of  discussion  in  our  Conven 
tions.  It  was  very  ably  considered,  upon  abstract  principle,  in 
the  New  York  Convention  of  1846,  and  I  deem  it  of  sufficient 
interest  to  warrant  me  in  giving  a  few  extracts  from  speeches 
made  in  that  body  upon  the  different  sides  of  the  question.  A 
section  had  been  proposed  to  be  embodied  in  the  new  Constitu 
tion,  by  which  eligibility  to  the  office  of  Governor  was  to  be 
confined  to  citizens  of  the  United  States,  thirty  years  of  age, 
who  should  have  been  five  years  resident  in  the  State  prior  to 
their  election.  Opposition  was  made  to  it  on  the  grounds,  first, 
that  it  was  improper  or  inexpedient;  and,  second,  that  it  would 
prove  futile,  inasmuch  as  the  sovereign  could  not  be  bound  by 
such  restrictions. 

Upon  the  general  question,  Mr.  Charles  O'Connor  said  :  "  Let 
us,  however,  for  a  moment,  recur  to  principle,  and  see  whether 
there  is  a  propriety  in  retaining  any  of  these  qualifications.  In 
every  democratic  state,  the  constituent  body  is  the  supreme 
power,  and  in  it  repose  all  the  powers  of  government  that  men 
can  legitimately  exercise  over  themselves  or  others.  In  such  a 
state,  it  is  the  province  of  the  fundamental  law  to  ascertain 
what  persons  shall  form  the  constituent  body  or  governing 
power  in  the  state,  and  then  to  limit  and  define,  with  as  much 
exactitude  as  practicable,  the  powers  and  duties  of  the  agents 
of  the  people,  or,  in  other  words,  the  several  departments  of  the 
government,  to  the  end  that  the  rights  of  individuals  may  suffer 
no  detriment  from  their  exercise.  It  was  the  proper  province 
of  such  an  instrument,"  he  repeated,  "  to  ascertain  the  constitu 
ent  body,  in  which  resided  the  supreme  power.  In  the  nature 
of  things,  that  body  never  could  embrace  all  within  the  protec 
tion  of  the  state,  and  who  were  to  be  governed  by  its  laws. 
Some  must  be  too  young  to  participate  in  the  governing  power. 
Others,  again,  too  advanced  in  life  to  take  part  in  it.  It  was  a 
question  whether  females  should  constitute  part  of  the  governing 


CAN   CONVENTIONS  LIMIT   THE   DISCRETION   OP   THE   ELECTORS  ?     333 

body.  It  was  a  proper  subject  of  consideration  whether  persons 
convicted  of  crime  shall  be  permitted  to  form  part  of  the  govern 
ing  body.  It  was  a  proper  subject  of  consideration  whether  par 
ticular  classes  of  persons  —  he  would  mention  negroes,  Indians, 
aliens,  and,  if  you  pleased,  naturalized  citizens  —  should  form 
part  of  the  constituent  body.  And,  in  laying  down  rules  for  de 
termining  who  were  the  constituent  body,  we  did  not  lay  restraints 
on  the  people  —  we  only  ascertained  who  the  people  were.  And, 
having  ascertained  that,  it  was  a  principle  not  to  be  departed 
from,  that  in  a  democratic  form  of  government  no  restraint 
should  be  laid  on  them  in  their  sovereign  capacity,  where  the 
whole  people  acted  for  the  purposes  of  the  government.  This 
doctrine  was  quite  consistent  with  the  existence  of  provisions 
declaring  what  persons  should  be  eligible  from  a  particular  pre 
cinct  to  the  Senate  or  Assembly;  for  a  portion  was  not  the  whole 
people,  and  where  power  was  thus  delegated  to  a  portion  of  the 
people  to  elect  a  member  of  Assembly,  who  might  enact  laws 
affecting  the  interests  of  the  whole,  the  latter  having  no  other 
check  on  the  election  in  the  precinct  or  district,  might  rightfully 
retain  the  selection  to  individuals  having  prescribed  qualifica 
tions.  What  restraints  ought  to  be  imposed  in  such  cases  was 
another  question.  But,  when  we  come,  as  in  case  of  the  Gov 
ernor,  to  an  election  in  which  all  participate,  an  exercise  of  the 
power  of  choice  by  the  whole  people,  acting  in  their  sovereign 
capacity,  every  one  of  the  constituents  or  governing  body  hav 
ing  a  vote,  he  insisted  that  no  restraint  should  be  imposed.  The 
field  of  selection  should  be  free  and  unrestricted."  1 

§  354.  On  the  other  hand,  the  very  evident  fallacies  contained 
in  this  reasoning  were  ably  exposed  by  Mr.  Ruggles,  Mr.  Mar 
vin,  and  Mr.  Porter.  The  last-named  gentleman,  after  showing 
that  the  right  of  suffrage  and  of  eligibility  to  office  are  derivative 
and  not  natural  rights,  adverting  to  the  argument  of  Mr.  O'Con 
nor,  said :  — 

"  I  submit  to  that  gentleman,  that  in  his  argument  there  was 
a  fatal  fallacy.  The  gentleman  says  it  is  our  right  to  deter 
mine  who  the  people  are,  by  fixing  the  qualifications  of  electors. 
That,  having  determined  who  the  people  are,  we  cannot  re 
strict  their  power  to  elect.  Sir,  the  electors  are  not  the  people. 
They  are  only  a  part  of  the  great  whole.  The  people  comprise 

l  Deb.  N.  Y.  Conv.,  1846,  p.  201. 


334     CAN  CONTENTIONS  LIMIT  THE  DISCRETION  OP  THE  ELECTORS? 

all.     You  have  a  Bill  of  Rights  to  protect  them  in  the  enjoy 
ment  of  life,   property,  and  liberty.     Does  this  extend  only  to 
qualified  electors  ?     No,  but  to  every  man,  woman,  and  child 
within  the  dominion  of  your  laws.     These  constitute  the  peo 
ple,  and  we  are  their  representatives.     The  gentlemen  deny  our 
right  to  restrict  any  thing  but  delegated  power.     Why,  sir,  the 
power  of  the  electoral  body  itself  is  a  delegated  power ;  not  in 
form,  but  in  effect1  —  by  the  necessity  of  the  social  compact. 
We  were  elected  only  by  qualified  voters.     But  we  are  the  rep 
resentatives  of    all.      Those  electors  themselves  were   but  the 
representatives  of  the  people.     Four  hundred  and  fifty  thousand 
electors  act  for  two  millions  and  a  half  of  citizens.    Nay,  more  ; 
two  hundred  thousand  electors  may  constitute  a  plurality.    Shall 
those  two  hundred  thousand  —  a  minority  even  of  the  electoral 
body  —  without  restriction  or    barrier,  select  whomsoever  they 
please  to  rule  over  two  and  a  half  millions  of  freemen  ?     We 
have   a   female    population    of   one  million   two  hundred   and 
ninety-three  thousand,  —  three  times  the  number  of  your  whole 
electoral  body.     They  have  as  deep  an  interest  in  this  govern 
ment  as  you,  —  nay,  a  deeper  interest.     If  your  laws  prove  dan 
gerous  to  liberty,  you  can  unmake  the  work  of  your  own  hands. 
You  are  clothed  with  the  power  of  the  ballot-box.     You  have 
the  strong  arm  to  resist  unto  blood.     They  are  voiceless,  power 
less,  defenceless.    Are  not  we  their  representatives  here  ?    There 
are  more  citizens  under  than  over  twenty-one  years.     They  have 
more  interest  than  we  in   the   Constitution  we  are  to  frame. 

They  are  to  survive  us  and  the  electors  who  sent  us  here 

We  represent  not  the  mere  party  which  nominated,  not  the  mere 
voters  who  elected  us,  but  the  whole  people  of  New  York,  of 
every  sex,  and  of  every  age  and  condition  —  aye,  and  the  suc 
ceeding  millions,  whose  constitutional  rights  we  are  now  assert 
ing When,  therefore,  we  convene  as  the  representatives 

of  a  free  people,  to  discuss  elementary  principles  of  constitu 
tional  law,  let  us  discard  the  spirit  of  the  demagogue It 

devolves  upon  us  to  perpetuate  the  privileges  of  our  citizens,  and 
to  guard  our  institutions  from  danger  in  the  distance,  whether 
menaced  by  legislative  corruption,  by  popular  excitement,  by 
partisan  frenzy,  or  by  the  encroachments  of  power."  2 

1  It  is  clearly  so,  both  in  form  and  effect. 

2  Deb.  N.  Y.  Cony.,  1846,  pp.  249,  250. 


CAN   CONVENTIONS   LIMIT   THE  DISCRETION   OP   THE   ELECTORS?    335 

The  result  of  the  debate  was,  that  a  clause  containing  the 
restriction  indicated  was  embodied  in  the  Constitution. 

§  355.  In  the  Louisiana  Convention  of  1844,  the  same  ques 
tion  was  considered  in  its  relations  to  the  Constitution  of  the 
United  States.  The  standing  committee  upon  the  executive 
department  reported  to  that  Convention  a  provision,  the  mate 
rial  part  of  which  was  as  follows :  "  No  person  shall  be  eligible 
to  the  office  of  Governor  or  Lieutenant-Governor,  except  a  na 
tive  citizen  of  the  United  States,  or  an  inhabitant  at  the  time  of 
the  cession  to  the  United  States  of  that  portion  of  territory  in 
cluded  in  the  present  limits  of  the  present  State  of  Louisiana, 
....  and  who  shall  not  have  arrived  at  the  age  of  thirty-five 
years."  A  motion  was  made  to  strike  out  all  after  the  word 
"  except,"  down  to  the  words  "  State  of  Louisiana,"  upon  the 
ground,  that  the  proposed  restriction  was  repugnant  to  the  Con 
stitution  of  the  United  States.  A  debate  thereupon  sprung  up, 
which  was  participated  in  by  the  ablest  men  in  the  Convention, 
Mr.  Brent,  Mr.  Soule,  Mr.  Benjamin,  and  others,  and  which 
resulted  in  modifying  the  clause  so  as  to  require  a  person,  to  be 
eligible  to  the  office  of  Governor  or  Lieutenant-Governor,  to 
have  attained  the  age  of  thirty-five  years,  and  to  have  been  fif 
teen  years  a  citizen  and  resident  of  the  State —  the  friends  of 
the  restriction  thus  sustaining  a  defeat. 

The  course  of  argument  upon  the  question  was  as  follows :  — 
§  356.  By  those  who  were  opposed  to  the  restriction  indicated, 
it  was  urged,  that  the  clause  objected  to  was  repugnant  to  the 
Constitution  of  the  United  States  ;  that  if  the  Convention  could 
confine  eligibility  to   native   citizens   of   the   United   States,  it 
might  also  confine  it  to  native  citizens  of  Louisiana  ;  that  by 
the  fourth  paragraph  of  the  eighth  section  of  the  first  article  of 
the  Federal  Constitution,  it  was  declared,  "  that  Congress  shall 
have   power   to   establish    an    uniform   rule    of    naturalization 
throughout  the  United  States;"  that  by  the  first  paragraph  of 
the  second  section  of  the  fourth  article,  it  was  provided,  on  the 
other  hand,  that  « the  citizens  of  each  State  shall  be  entitled 
to  all  the  privileges  and  immunities  of  citizens  in  the  several 
States;"  that,  by  the  paragraph  first  cited,  the  several   States 
ceded  to  the  general  government  all  control  over  the  subject  of 
naturalization,  and  that  the  legislation  of  Congress  on  the  sub 
ject,  therefore,  if  any  had  been  had,  must  be  regarded  as  para- 


336     CAN   CONVENTIONS   LIMIT   THE   DISCRETION   OF   THE   ELECTORS? 

mount  and  supreme ;  that  two  questions  thereupon  arose  — 
Had  this  power  been  exercised  by  the  general  government?  and 
if  so,  Could  its  action  be  nullified  by  the  authority  of  one  of 
the  States?  That  to  the  first  question  the  answer  was,  that 
Congress  had  exercised  the  power,  by  declaring  that  immigrants 
to  this  country  who  should  reside  here  five  years,  and  pursue 
certain  formalities,  should  be  entitled  to  all  the  rights  and  priv 
ileges  of  American  citizens ;  that  to  the  other  question,  the  only 
response  was,  that  the  legislation  of  Congress  on  the  subject 
could  not  be  counteracted  or  set  at  nought  by  any  exercise  of 
power  on  the  part  of  the  States  ;  that  it  could  not  be  doubted 
that  the  Convention  had  power  to  prescribe  any  qualification  it 
pleased  for  him  who  aspired  to  the  office  of  Governor,  provided, 
however,  that  it  did  not  contravene  the  provision  cited  from  the 
fourth  article,  by  making  any  distinction  between  American  citi 
zens;  that  the  effect  of  the  proposed  restriction  would  be  to 
discriminate  against  the  naturalized  citizen ;  that  a  foreigner, 
naturalized,  let  it  be  supposed,  in  the  State  of  Illinois,  under 
the  Act  of  Congress,  and  so  admitted  to  all  the  rights  of  citi 
zenship,  and  eligible,  under  the  laws  and  Constitution  of  that 
State,  to  all  offices  created  by  them,  would  instantly,  on  remov 
ing  to  the  State  of  Louisiana,  be  struck  with  disability,  and  be 
disqualified  to  hold  the  office  of  Governor,  whereas  no  such 
prohibition  would  extend  to  the  native  citizen  of  that  or  any 
other  State ;  which  would  clearly  violate  that  clause  of  the 
Federal  Constitution  which  declares  that  "  the  citizens  of  each 
State  shall  be  entitled  to  all  the  privileges  and  immunities  of 
citizens  in  the  several  States."  l 

§  357.  On  the  other  hand,  the  advocates  of  the  proposed 
restriction  contended,  that  the  provision  of  the  Federal  Consti 
tution,  that  "the  citizens  of  each  State  shall  be  entitled  to  all 
the  privileges  and  immunities  of  citizens  in  the  several  States," 
did  not  mean  that  they  should  be  invested  with  all  the  rights 
which  could  be  enjoyed  by  any  citizen,  but  such  only  as  flowed 
from  the  mere  fact  of  citizenship,  irrespective  of  other  qualifica 
tions  ;  that,  accordingly,  under  this  clause  of  the  Constitution, 
no  citizen  of  one  State,  migrating  to  another,  could  there  claim 
to  be  a  •  oter  or  to  be  eligible  to  office,  unless  mere  citizenship, 
without  z>ther  conditions,  under  the  Constitution  or  laws  of  such 

1  See  speeches  of  Messrs.  Beatty,  Brent,  and  Soule,  in  Deb.  La.  Conv.,  1844, 
pp.  206,  207,  211. 


CAN   CONVENTIONS   LIMIT   THE   DISCRETION    OF   THE   ELECTORS?     337 

other  State,  entitled  its  citizens  to  those  privileges;  that  the 
conduct  of  the  founders  of  the  Federal  government  indicated 
that  it  was  not  their  intention,  by  the  provision  in  question,  to 
throw  open  all  political  rights  to  all  citizens  without  qualifica 
tions,  for  they  restricted  eligibility  to  the  offices  of  President  and 
Senator  in  Congress  to  persons  having  prescribed  qualifications 
as  to  age  and  citizenship;  that,  although  it  was  true,  that  the 
Constitutions  of  most  of  the  States  contained  no  clause  similar 
to  the  one  proposed,  such  a  clause  was  contained  in  six  of  those 
Constitutions,  amongst  them  that  of  Virginia,  framed  in  1829- 
30,  by  a  Convention  which  reckoned  among  its  members  some 
of  the  ablest  men  ever  known  in  the  Union,  one  of  them  a  dele 
gate  to  the  Federal  Convention  of  1787,  such  as  Monroe,  Madi 
son,  Marshall,  Patrick  Henry,  John  Randolph,  and  Giles  ;  that 
in  that  Constitution  it  was  provided,  that  no  man  should  be 
Governor  of  Virginia  unless  he  was, —  1st,  thirty  years  of  age; 
2d,  a  native-born  citizen  of  the  United  States ;  3d,  five  years  a 
resident  of  the  State;  that,  moreover,  the  action  of  Congress 
in  admitting  into  the  Union  States  whose  Constitutions  con 
tained  the  restriction  complained  of  was  evidence  tending  to  the 
same  result ;  that  the  three  States  of  Arkansas,  Missouri,  and 
Alabama,  were  the  States  referred  to,  and  it  being  absolutely 
necessary,  before  they  could  be  admitted,  that  their  Constitu 
tions  should  have  been  submitted  to  the  Congress  of  the  United 
States,  to  determine  that  no  provision  had  been  inserted  therein 
which  would  clash  with  the  Federal  Constitution,  when  Con 
gress  had  passed  upon  those  instruments  and  admitted  those 
States  under  them,  no  other  or  stronger  evidence  could  be  de 
sired,  that  they  did  not  conflict  with  the  Federal  Constitution ; 
that  to  hold  the  contrary  would  be  to  maintain,  that  on  three 
several  occasions  the  Representatives  and  Senators  in  Con 
gress  and  the  Presidents  of  the  United  States  had  asserted  an 
unconstitutional  restriction  to  be  a  constitutional  one.1 

§  358.  Notwithstanding  the  adverse  decision,  if  it  must  be  so 
regarded,  of  this  question  in  Louisiana,  I  am  satisfied  they 
were  right  who  maintained  the  existence  of  power  in  the  Con 
vention  to  make  the  restriction. 

1.  It  is  important  to  note,  that  in  the  provision  of  the  Federal 
Constitution,  that  "  the  citizens  of  each  State  shall  be  entitled 

1  Deb,  La.  Conv.,  1844,  p.  220. 
22 


338     CAN   CONVENTIONS   LIMIT   THE   DISCRETION   OF   THE  ELECTORS? 

to  all  the  privileges  and  immunities  of  citizens  in  the  several 
States,"  the  words,  "  in  the  several  States,"  qualify  the  word 
"  entitled,"  and  not  the  nearer  word,  "  citizens  ; "  so  that,  arrang 
ing  the  words  according  to  their  grammatical  relations,  the  pas 
sage  would  read  thus :  "  the  citizens  of  each  State  shall  be 
entitled  in  the  several  States  to  the  privileges  and  immunities 
of  citizens."  Were  those  words  to  be  taken  as  qualifying  the 
word . "  citizens,"  the  Federal  Constitution  would  be  made  to 
give  to  every  citizen,  wherever  he  might  be  in  the  Union,  all  the 
privileges  and  immunities  enjoyed  by  citizens  in  any  State  ;  that 
is,  supposing  the  office  of  Governor  were,  in  the  State  of  Ala 
bama,  thrown  open  to  all  the  citizens  of  Alabama,  the  Federal 
Constitution  would  then  step  in  and  secure  the  same  privilege 
to  the  citizens  of  each  State,  in  their  several  States.  The  phrase 
ology  used,  however,  properly  understood,  has  no  such  wide  op 
eration.  By  it,  a  citizen,  migrating  from  any  State  to  another 
State,  would  be  entitled,  in  the  latter,  to  such  privileges  as  were 
-there  accorded  to  the  possession  of  mere  citizenship,  under  its 
laws.  Thus,  a  citizen  of  New  York,  migrating  to  New  Jersey, 
would  not  be  an  alien,  but  a  citizen  of  New  Jersey,  and,  as 
such,  entitled  to  enjoy  such  privileges  and  exercise  such  rights, 
as  the  State  of  New  Jersey  allowed  indifferently  to  all  its  citizens. 

§  359.  It  is,  therefore,  a  matter  of  importance  to  ascertain 
what  are  "  the  rights  of  citizens  in  the  several  States ; "  that  is, 
the  rights  attaching  in  the  several  States  to  naked  citizenship ; 
for  such  rights  only  are  guaranteed  by  the  constitutional  pro 
vision  cited. 

It  is  believed,  that  the  rights  attaching  in  the  several  States  to 
the  possession  of  mere  citizenship  exist  not  by  positive  law,  but 
by  the  principles  of  the  common  law,  or  by  those  of  public  law. 
It  is  then  in  the  decisions  of  courts  of  law,  and  in  the  writings 
of  publicists  and  jurists,  that  we  must  look  to  determine  what 
those  rights  are. 

A  clear  exposition  of  those  rights  was  made  at  an  early  day 
by  Mr.  Justice  Washington,  in  a  case  which  has  been  a  leading 
authority  upon  the  subject  ever  since.1  The  State  of  New  Jersey 
having  passed  an  Act  confining  the  right  of  fishing  for  oysters 
in  its  waters  to  its  own  citizens,  the  question  was  raised  in  that 
case,  whether  the  Act  was  not  in  violation  of  Art.  IV.  §  2,  of 
1  Corfield  v.  Coryell,  4  Wash.  C.  C.  R.  371. 


CAN   CONVENTIONS   LIMIT   THE   DISCRETION    OF  THE   ELECTORS?     339 

the   Federal  Constitution.     After  stating  the  question,  Justice 
Washington  said :  — 

"  The  inquiry  is,  what  are  the  privileges  and  immunities  of 
citizens  in  the  several  States  ?  We  feel  no  hesitation  in  confin 
ing  these  expressions  to  those  privileges  and  immunities  which 
are  in  their  nature  fundamental ;  which  belong,  of  right,  to  the 
citizens  of  all  free  governments;  and  which  have  at  all  times 
been  enjoyed  by  the  citizens  of  the  several  States  which  com 
pose  this  Union,  from  the  time  of  their  becoming  free,  inde 
pendent,  and  sovereign.  What  these  fundamental  principles 
are,  it  would  perhaps  be  more  tedious  than  difficult  to  enumer 
ate.  They  may,  however,  be  all  comprehended  under  the  fol 
lowing  general  heads :  protection  by  the  government,  the  enjoy 
ment  of  life  and  liberty,  with  the  right  to  acquire  and  possess 
property  of  every  kind,  and  to  pursue  and  obtain  happiness  and 
safety ;  subject,  nevertheless,  to  such  restraints  as  the  govern 
ment  may  justly  prescribe  for  the  general  good  of  the  whole. 
The  right  of  a  citizen  of  one  State  to  pass  through  or  to  reside 
in  any  other  State,  for  the  purposes  of  trade,  agriculture,  profes 
sional  pursuits,  or  otherwise  ;  to  claim  the  benefit  of  the  writ  of 
Habeas  Corpus ;  to  institute  and  maintain  actions  of  any  kind 
in  the  courts  of  the  State ;  to  take,  hold,  and  dispose  of  prop 
erty,  either  real  or  personal ;  and  an  exemption  from  higher  taxes 
or  impositions  than  are  paid  by  the  other  citizens  of  the  State, 
may  be  mentioned  as  some  of  the  particular  privileges  and  im 
munities  of  citizens,  which  are  clearly  embraced  by  the  general 
description  of  privileges  deemed  to  be  fundamental ;  to  which 
may  be  added  the  elective  franchise,  as  regulated  and  established 
by  the  laws  and  Constitution  of  the  State  in  which  it  is  to  be 
exercised" 

§  360.  That  the  right  to  vote  or  to  be  elected  to  office,  irre 
spectively  of  the  qualifications  prescribed  by  the  laws  of  the 
State  to  which  a  citizen  may  remove,  is  not  one  of  the  privi 
leges  and  immunities  intended  by  the  Federal  Constitution,  is 
clearly  inferable  from  the  last  clause  of  this  extract.  The  same 
opinion  has  been  expressed  by  our  best  constitutional  lawyer, 
Daniel  Webster.  Thus,  in  an  argument  before  the  Supreme 
Court  of  the  United  States  in  the  case  of  The  Bank  of  the  Uni 
ted  States  v.  Primrose,1  Mr.  Webster,  referring  to  the  article  of 
the  Constitution  in  question,  said  :  — 

l  Webster's  Works,  Vol.  VI.  p.  112. 


340     CAN    ELECTORS   INSTRUCT   THEIR    DELEGATES   TO    CONVENTIONS? 

"  That  this  Article  in  the  Constitution  does  not  confer  on  the 
citizens  of  each  State  political  rights  in  every  other  State,  is  ad 
mitted.  A  citizen  of  Pennsylvania  cannot  go  into  Virginia  and 
vote  at  an  election  in  that  State ;  though  when  he  has  acquired 
a  residence  in  Virginia,  and  is  otherwise  qualified,  as  required 
by  her  Constitution,  he  becomes,  without  formal  adoption  as  a 
citizen  of  Virginia,  a  citizen  of  that  State  politically.  But  for 
the  purposes  of  trade,  commerce,  buying  and  selling,  it  is  evi 
dently  not  in  the  power  of  any  State  to  impose  any  hindrance 
or  embarrassment,  or  levy  any  excise,  toll,  duty,  or  exclusion, 
upon  citizens  of  other  States,  or  to  place  them,  coming  there, 
upon  a  different  footing  from  her  own  citizens."  1 

§  361.  From  the  reasonings  above  given,  it  is  plain,  that  mere 
citizenship  of  a  State  does  not  carry  with  it  a  right  to  enjoy  all 
the  privileges  and  immunities  conferred  upon  any  citizen,  but 
only  certain  civil  rights,  resting  on  natural  law,  but  needing  for 
their  practical  enjoyment  the  guaranty  of  government.  It  would, 
perhaps,  express  the  whole  truth  to  say,  that  the  rights  to  which 
one  is  entitled  from  the  naked  fact  of  citizenship,  are  those  usu 
ally  guaranteed  by  our  Bills  of  Rights.  It  is  equally  apparent 
that  there  are  privileges  and  immunities  enjoyed  by  some  cit 
izens,  by  reason  of  special  qualifications,  that  are  not  conferred 
upon  all  citizens,  though  none  but  citizens  can  enjoy  them  — 
privileges  and  immunities  that  spring  from  positive  law,  such  as 
to  vote  and  to  hold  office.  The  former  are  denominated  civil, 
the  latter,  political  rights. 

In  assuming,  then,  as  did  the  Louisiana  Convention  of  1844, 
to  restrict  eligibility  to  the  office  of  governor,  to  native-born  cit 
izens  of  the  United  States,  that  body  did  not,  in  my  view,  tran 
scend  its  power  or  contravene  the  Federal  Constitution.  The 
question  as  to  the  expediency  of  such  a  restriction,  is  a  different 
one,  which  it  is  unnecessary  here  to  discuss. 

§  362.  8.  The  last  question,  involving  the  relations  of  Con 
ventions  to  the  electors,  which  I  propose  to  consider,  is  —  Have 

l  To  the  same  effect,  see  Amy  v.  Smith,  1  Littell  R.  333 ;  Campbell  v.  Mor 
ris,  3  Har.  &  McHen.  R.  554 ;  Murray  v.  McCarty,  2  Munf.  R.  398  ;  Austin  v. 
The  State,  10  Mo.  R.  592;  and  the  opinion  of  Justice  Curtis  in  the  case  of  Dred 
Scott  v.  Sandford,  19  How.  (U.  S.)  R.  580-584.  See  also  the  remarks  of  Chief 
Justice  Spencer,  Col.  Young,  Mr.  RadclifF  and  others,  to  the  same  effect,  and  of 
Mr.  Jay,  Mr.  Van  Vechten,  Mr.  Livingston,  Mr.  Kent  (Chancellor  Kent)  and 
others,  to  the  contrary,  in  the  New  York  Convention  of  1821,  in  Deb.  N.  Y. 
Cony.  1821,  pp.  183-202. 


CAN   ELECTORS   INSTRUCT   THEIR   DELEGATES   TO    CONVENTIONS?    341 

the  electors  power  to  instruct  their  delegates,  and  if  so,  to  what 
extent,  or  under  what  conditions  ? 

This  question  arose  as  a  practical  one  in  the  Ohio  Convention 
of  1850,  but  was  not  discussed,  the  member,  for  whom  the  in 
structions  were  intended,  refusing  to  obey  them,  but  resigning 
his  office,  with  the  acquiescence  of  the  Convention.  As  I  deem 
the  right  of  instruction,  as  asserted  in  this  case,  more  than  doubt 
ful,  a  brief  statement  of  the  facts,  and  of  the  principles  which, 
in  my  view,  ought  to  govern  it,  will  not  be  out  of  place. 

The  Ohio  Convention  of  1850  having  been  called,  in  anticipa 
tion  of  the  election  of  delegates  thereto,  a  public  meeting  was 
held  "of  the  democracy  of  Butler  County,"  at  which  resolutions 
were  passed  instructing  the  delegates  who  should  be  chosen  from 
that  county,  to  support,  in  the  Convention,  the  doctrine  of  the 
repeatability  of  charters  of  incorporation,  as  well  those  then  ex 
isting  as  those  that  might  be  granted  in  the  future.  Mr.  Vance, 
a  candidate  for  the  Convention,  from  Butler  County,  in  a  com 
munication  to  his  constituents,  published  before  the  election, 
refused  to  subscribe  to  the  platform  thus  laid  down  for  him,  but 
was  nevertheless  elected  by  a  large  majority.  The  Convention 
having  assembled,  a  clause  was  proposed  to  be  inserted  in  the 
Constitution,  giving  to  the  legislature  unlimited  power  of  repeal 
ing  such  charters.  The  course  of  Mr.  Vance  upon  this  subject, 
not  being  satisfactory  to  the  "  democracy  of  Butler  County,"  a 
meeting  of  the  latter  was  again  called,  at  which  the  instructions 
to  their  delegates  were  repeated  and  emphasized,  and  those  del 
egates  were  requested  to  adhere  to  them  strictly  or  to  resign. 
Mr.  Vance  chose  to  do  the  latter,  not  distinctly  admitting  the 
instructions  to  be  binding  on  him,  but  being  unwilling  to  be 
placed  in  a  position  which  would  carry  with  it  even  the  appear 
ance  of  disobedience  to  the  will  of  his  constituents. 

§  363.  As  bearing  on  the  general  question  of  the  right  of  in 
struction,  the  following  observations  seem  to  me  to  be  pertinent 
to  this  case. 

1.  The  function  of  a  Convention  being,  when  considered  in 
the  light  of  theory,  advisory  merely,  and  that  of  the  particular 
Convention  in  question  having  been  made  so  by  the  Act  of  As 
sembly,  under  which  it  convened,  since  the  latter  expressly 
required  the  submission  of  the  Constitution  to  be  framed  by 
it  to  the  people,  it  would  seem  to  be  an  act  of  absurd  inconsist- 


342    CAN   ELECTORS   INSTRUCT   THEIR   DELEGATES   TO    CONVENTIONS? 

ency  for  the  people,  or  any  part  of  the  people,  forming  an  elect 
oral  district,  to  instruct  its  delegates.  It  would  be  simply  to  ask 
advice,  but  first  to  dictate  to  the  advising  body  what  its  advice 
should  be! 

2.  But  the  Ohio  case  was  more  absurd  than  that.  It  was  not 
the  people  of  Ohio,  or,  even,  what  might  by  analogy  be  called 
the  people  of  Butler  County,  that  assumed  to  issue  instructions 
in  that  case.  It  was  "  the  democracy  of  Butler  County,"  the 
members  of  one  of  its  political  parties,  —  comprising,  perhaps,  a 
majority  of  its  legal  voters,  and  perhaps  not,  —  who  presumed  to 
discharge  that  delicate  duty.  It  is  doubtful  if  the  dogma  of 
squatter-sovereignty  ever  produced  an  act  of  greater  insolence 
or  absurdity  than  this.  Whatever  the  delegates  to  the  Con 
vention  represented,  they  certainly  did  not  represent  the  "  democ 
racy  of  Butler  County,"  who,  therefore,  had  no  more  right  to 
instruct  them  than  had  the  milkmaids  or  the  barbers  of  Butler 
County.  If  those  delegates  represented  anybody  within  the 
county,  it  was  the  electors  there  residing,  without  distinction  of 
party,  of  whom  the  election  expressed  the  collective  will.  If  the 
right  of  instruction  were  conceded  to  any  designated  section  of 
the  electors,  acting,  not  as  electors,  but  in  a  party  or  other  pri 
vate  capacity,  it  could  not  be  denied  to  every  individual  voter. 
For,  in  such  a  case,  the  right  would  be  accorded  to  them,  not  as 
being  the  majority  of  the  electors,  since  the  term  majority  is 
relative  to  the  entire  electoral  body  only,  but  as  constituting  the 
party  or  section,  whether  less  or  more  than  the  majority  —  a 
right  which  could  rest  only  on  the  sovereignty  of  the  individual 
elector. 

§  364.  3.  Finally,  I  observe,  that  the  right  of  instruction,  if 
it  exists  at  all,  must  inhere  either  in  the  sovereign,  or  in  some 
body  representing  the  sovereign,  and  that  in  either  case,  the  elect 
oral  body  of  any  particular  district  would  be  incapable  of  exer 
cising  the  right.  The  electors  are  not  the  sovereign,  though  as  a 
body  they  unquestionably  are  the  representatives  of  the  sovereign, 
and  whatever  they  do,  as  such,  within  constitutional  limits,  must 
be  considered  as  done  by  the  sovereign  itself.  If  that  body  were 
to  publish  instructions  to  a  Convention  in  reference  to  the  meas 
ures  it  should  consider  or  report,  whatever  might  be  thought  of 
the  expediency  of  its  interfering  thus,  neither  their  right  to  do 
so,  nor  the  consequent  duty  of  obedience  on  the  part  of  the  del- 


RELATIONS   OP   CONVENTIONS   TO   EXECUTIVE   AND   JUDICIARY.      343 

egates  could  well  be  denied.1  But  with  the  electors  of  any 
particular  electoral  circle,  the  case  is  widely  different.  They  do 
not,  in  a  strict  sense  of  the  term,  represent  the  sovereign.  They, 
together  with  their  co-electors  throughout  the  State,  are  its  rep 
resentatives.  Their  voice,  therefore,  though  an  element  in  that 
which  is  to  be  taken  as  the  voice  of  the  sovereign,  is  not  itself 
that  voice.  The  voice  of  the  sovereign  is  a  chorus,  made  up 
of  the  separate  voices  of  all  the  electors ;  it  is  the  resultant  of 
those  separate  voices.  It  follows,  therefore,  first,  that  instruc 
tions,  if  given  by  the  electors  at  all,  must  emanate  from  the 
entire  electoral  body,  as  no  otherwise  could  they  be  authentic ; 
and,  secondly,  that  they  must  be  addressed  to  the  assembly  of 
the  delegates  and  not  to  the  single  delegate,  or  to  a  less  num 
ber  than  the  entire  body. 

With  the  question,  Whether  instructions  can  be  given  to  a 
Convention  by  any  body  of  persons  in  the  State  beside  the 
electors,  as  by  the  legislature,  I  do  not  now  concern  myself, 
since  it  will  be  the  subject  of  special  inquiry  in  the  following 
chapter  of  this  work. 

§  365.  Thus  far,  I  have  considered  the  relations  of  Conven 
tions  to  the  sovereign  body,  and  to  the  electors,  its  immediate 
representatives.  I  proceed  now  to  discuss  the  relations  of  those 
bodies  to  the  other  governmental  agencies,  commonly  styled  the 
Legislative,  Executive,  and  Judicial  Departments,  and  to  in 
quire  into  the  powers  and  disabilities  resulting  to  them  severally 
on  account  of  those  relations. 

§  366.  (d).  1.  With  the  Executive  and  Judiciary  of  a  State, 
a  Convention  has,  in  the  ordinary  and  normal  operation  of  its 
government,  no  direct  relations.  Neither  of  these  departments 
has  any  thing  to  do  with  calling  it  together,  except  in  perhaps 
rare  cases,  in  which  some  specific  and  extraordinary  duty  has 
been  prescribed  to  it  by  the  legislature;  and  neither  of  them, 
while  a  Convention  is  in  session,  has  any  occasion  to  come  in 
contact  with  it.  The  only  cases  in  which  either  of  those  depart 
ments  could  be  brought  into  direct  relations  with  that  body, 
would  be  where  the  latter  should  attempt  to  direct  it  in  the  dis 
charge  of  its  constitutional  duties,  —  a  case  which  has  already 
been  considered,  —  or  in  which  one  of  the  former  should  at 
tempt  to  revolve  outside  its  proper  orbit,  and  thus  bring  about 
1  Szepost,  §§  376-383,  where  this  question  is  more  fully  considered. 


344         RELATIONS   OF   THE   CONVENTION   TO   THE   LEGISLATURE. 

collisions  with  the  latter.  Inasmuch,  however,  as  neither  of  the 
three  could  with  any  show  of  right  do  any  act  which  should  re 
sult  in  such  a  collision,  except  when  acting  in  assumed  con 
formity  to  some  law,  giving  to  usurpation  an  apparent  legality, 
no  questions  could  arise  between  them  as  to  their  respective 
powers,  which  would  not  resolve  themselves  into  questions  as  to 
the  relative  powers  of  Conventions  and  legislatures,  the  only 
law-making  bodies,  save  the  electors,  which  have  been  already 
considered,  known  to  our  Constitutions.  I  shall  therefore  spend 
no  time  in  considering  the  relations  of  those  two  departments  to 
Conventions,  but  pass  to  those  which  the  latter  bear  to  legis 
latures,  and  the  powers  resulting  therefrom,  which  belong  to 
each  of  those  bodies. 

§  367.  2.  From  a  variety  of  causes,  the  relations  of  a  Con 
vention  in  any  State  to  its  legislature  give  rise  to  questions  of 
the  greatest  moment  and  of  the  greatest  difficulty.  It  is  possible 
to  comprehend  and  to  estimate,  relatively  to  each  other,  these  two 
bodies,  only  by  ascertaining,  first,  their  respective  relations  to 
the  sovereign ;  and,  secondly,  their  mutual  resemblances  and 
differences  of  structure  and  function.  Of  these,  the  first  has 
so  frequently  been  the  subject  of  consideration  in  previous  chap 
ters,  that  it  is  now  only  necessary  to  recapitulate  some  of  the 
leading  features  of  those  bodies  as  they  stand  related  to  the 
political  society  in  which  they  are  convened.  We  have  seen  that 
both  Conventions  and  legislatures  are  agencies  appointed  by 
the  sovereign  for  purposes  of  its  own,  connected  with  the  forma 
tion,  the  renewal,  or  the  operation  of  government,  the  func 
tion  of  each  being  a  legislative  one ;  that  to  the  former  are  in 
trusted  certain  duties  relating  to  the  framing  of  the  fundamental 
laws,  extending  in  some  cases,  according  to  their  commissions, 
to  the  definitive  enactment  of  them ;  and  to  the  latter  the  en 
actment  of  the  ordinary  or  statute  law ;  that,  laying  out  of 
view  those  rare  cases  in  which  powers  of  definitive  action  are 
given,  Conventions  are  not  strictly  representative  bodies,  but 
rather  collections  of  delegates,  so  confined  and  restricted  by  the 
nature  of  their  duties  and  by  the  customary  law  pertaining  to 
them,  that  they  are  essentially  nothing  but  mere  committees ; 
that,  on  the  other  hand,  legislatures  are  invested  with  so  wide 
a  discretion,  and  such  power  of  definitive  action,  that  they  are 
entitled  to  be  ranked  as  par  excellence  representative  bodies ; 


RELATIONS   OF  THE   CONVENTION   TO   THE   LEGISLATURE.         345 

that  both  are,  nevertheless,  responsible  for  the  exercise  of  power 
to  its  source,  the  sovereign,  but  to  a  different  extent  and  in  a 
different  manner;  the  responsibility  of  the  former  being  ordi 
narily  more  direct,  inasmuch  as  its  office  is  "  to  recommend,  but 
to  conclude  nothing,"  submitting  the  fruit  of  its  deliberations  to 
the  electors  ;  that  of  the  legislature,  on  the  other  hand,  being 
remote  and  indirect,  since  its  function  is  to  determine  absolutely 
the  right  and  the  expedient  in  the  current  life  of  the  State,  subject 
only  to  reversal,  or,  in  extreme  cases,  to  punishment  for  error  or 
malfeasance  in  that  office.  Both  Conventions  and  legislatures, 
then,  equally  sustain  the  relation  of  instruments  through  which 
the  sovereign  executes  its  will ;  they  are  both  creatures  of  the 
Constitution,  the  principles  and  provisions  of  which  are,  during 
their  existence,  in  full  operation,  and  constitute  their  charter ; 
and  hence  they  are  to  be  viewed  as  parts  of  a  system  of  coor 
dinate  but  mutually  inter-dependent  agencies,  the  powers  and 
jurisdiction  of  which  are  to  be  ascertained  from  a  study  of  that 
system  and  not  of  each  agency  dissociated  from  the  others. 

§  368.  In  point  of  structure,  the  two  species  of  bodies  differ 
widely  from  each  other.  The  Convention  is  composed  of  a 
single  chamber,  and  the  legislature,  in  all  the  American  govern 
ments,  and  in  most  liberal  ones  abroad,  of  two  chambers,  coor 
dinate  in  authority,  but  representing  different  constituencies,  and 
often  different  interests.  By  this  diversity  a  Convention  is 
readily  seen  to  be  theoretically  less  adapted  for  final  action  than 
a  legislature.  It  is  liable  to  the  objection  so  fatal  to  single 
legislative  assemblies,  that  it  is  prone  to  hasty  and  passionate 
determinations,  and  is,  therefore,  a  ready  instrument  of  faction 
and  revolution.  In  matters  which  should  appeal  directly  to  the 
prejudices  of  its  members,  it  could  not  be  relied  upon  as  just  or 
wise.  Such,  so  far  as  its  structure  is  concerned,  is  likely  to  be 
the  character  of  a  Convention.  A  compensating  influence, 
however,  is  afforded  by  the  subject-matter  of  its  deliberations. 
The  fundamental  law,  while  it  is  infinitely  more  important  than 
the  ordinary  municipal  law,  to  frame  which  is  the  province  of  a 
legislature,  bears  less  nearly  upon  the  dominant  interests  or 
passions  of  men,  and  hence  it  might  so  far  be  left  safely  to  be 
moulded  by  a  single  chamber,  even  were  its  action  to  be  final. 
When  it  is  considered,  however,  that  the  action  of  Conventions 
is  ordinarily  not  final,  but  recommendatory  merely,  the  objec- 


346       RELATIONS  OP  THE  CONVENTION  TO  THE   LEGISLATURE. 

tions  to  their  structure  which  have  been  noted  are  seen  to  be  of 
much  less  weight. 

§  369.  An  important  analogy  between  Conventions  and  legis 
latures  relates  to  the  qualifications  for  membership  of  those 
bodies.  As  we  have  already  seen,  the  members  of  our  legisla 
tures  are  uniformly  required  to  be  elected  from  citizens  of  pre 
scribed  age,  sex,  and  social  conditions,  that  is,  from  the  body  of 
the  electors.  This  is  a  matter  which  is  carefully  ascertained  in 
our  Constitutions.  In  relation,  on  the  other  hand,  to  the  per 
sons  who  shall  be  eligible  as  delegates  to  our  Conventions, 
those  instruments  are  commonly  silent.1  From  this  fact  the  in 
ference  has  been  drawn,  that,  in  the  absence  of  specific  qualifi 
cations,  it  was  intended  that  the  electors  should  exercise  perfect 
freedom  of  choice,  and  that  it  would  be  competent  for  them  to 
depute  as  their  delegates  minors,  or  females,  or  citizens  of  other 
States.  But  this  is  a  matter  of  doubt ;  for,  as  shown  in  a  pre 
vious  chapter,  analogy,  as  well  as  the  principles  of  popular  gov 
ernment,  seem  to  restrict  the  holding  of  public  functions  to  the 
class  in  whom  rests,  as  the  nearest  representatives  of  the  sover 
eign,  the  practical  exercise  of  sovereign  rights,  namely,  that  of 
the  electors.  Accordingly,  as  there  stated,  equally  when  the 
qualifications  of  delegates  have,  and  when  they  have  not,  been 
prescribed,  the  choice  of  them  has  been  almost  uniformly  con 
fined  within  the  limits  determining  the  minimum  qualifications 
of  the  electoral  body. 

§  370.  In  respect  of  their  functions,  there  is  also  an  analogy, 
which  is  at  the  same  time  a  contrast,  between  Conventions 
and  legislatures.  Both,  as  we  have  seen,  belong  to  the  genus 
legislature.  That  is,  they  are  both  charged  with  the  elaboration 
or  the  enactment  of  laws.  Where  they  differ  is  in  the  kind  of 
law  with  which  they  are  concerned,  and  in  the  extent  of  their 
agency  in  its  formation. 

1.  A  Convention  participates  directly  in  the  enactment  of  the 
fundamental  law  only.  Indirectly,  it  may  determine  the  limits 
or  the  general  character  of  the  municipal  law,  but  it  never 
rightfully  assumes  to  enact,  or  even  to  recommend  it,  except 
when  that  law  has  passed  over  from  the  experimental  to  that 
which  is  truly  fundamental.  Whatever  it  does,  however,  in  the 

1  See  ante,  §§  267-269,  in  which  the  exceptions  are  stated,  where  the  quali 
fications  of  delegates  are  prescribed. 


RELATIONS   OF  THE   CONVENTION   TO   THE   LEGISLATURE.        347 

sphere  accorded  to  it,  it  does  merely  by  way  of  recommenda 
tion  to  the  body  behind  it,  by  whom  its  recommendations  are  to 
be  adopted  or  rejected.  A  Convention,  therefore,  is  a  legisla 
tive  body  only  sub  modo,  having  some,  but  not  all,  legislative 
functions. 

2.  A  legislature,  on  the  other  hand,  is  a  body  possessed  of 
much  broader  powers.  Though  responsible  to  the  sovereign 
that  created  it,  it  is  its  function  to  express  authentically  the  will 
of  the  sovereign  in  relation  to  all  emergencies  of  the  social  state, 
so  far  at  least  as  it  has  not  been  manifested  by  the  Constitution. 
It  is  the  body  which  pronounces  the  statute  law  of  the  State. 
All  measures  relating  to  the  conduct  or  to  the  rights  of  indi 
viduals,  to  the  administration,  or  defence  of  the  government, 
which  are  not  prohibited  by  the  fundamental  law  or  by  the  moral 
code,1  and  which  yet  are  deemed,  on  a  large  view  of  the  public 
interests,  to  be  expedient,  are  within  the  competence  of  a  legis 
lature  with  the  general  powers  of  legislation  conferred  by  our 
Constitutions. 

§  371.  To  this  general  statement  of  the  extent  of  the  power 
of  our  legislatures,  the  proviso  must  be  appended,  that  the 
measures  passed  by  those  bodies  must  not  be  of  the  character 
denominated  fundamental.  The  necessity  of  this  proviso  is  ap 
parent  from  the  character  of  the  American  governments,  before 
referred  to,  as  distinguished  from  that  of  Great  Britain,  after 
which  they  were  modelled.  The  Parliament  of  Great  Britain  is 
possesse4  of  all  legislative  powers  whatsoever.  It  can  enact 
ordinary  statutes,  and  it  can  pass  laws  strictly  fundamental. 
Not  so  with  our  legislatures.  Saving  the  single  case,  to  be 
noted  in  a  subsequent  chapter,  in  which,  by  express  constitu 
tional  provision,  they  act  in  a  conventional  capacity,  in  the  way 
of  recommending  specific  amendments  to  their  Constitutions, 
they  have  no  power  whatever  to  amend,  alter,  or  abolish  those 
instruments.  Subject,  however,  to  this  limitation,  a  legisla 
ture,  under  our  system,  may  expatiate  through  the  whole  do 
main  of  the  expedient,  as  fully  as  the  sovereign  itself  could  do, 
were  it  to  act  in  person.2  The  propriety  of  such  an  adjustment 

1  But,  that  a  Convention  has  power  to  trample  on  the  moral  code,  or,  as 
it  is  termed,  "  to  annul  perfect  rights,"  see  M'Mullen  v.  Hodge,  5  Texas  R.  34. 
See  also  Warren  v.  Sherman,  id.  441. 

2  This  description  of  the  limits  of  legislative  power  is  applicable  only  to  the 


348       RELATIONS   OF   THE   CONVENTION   TO   THE   LEGISLATURE. 

of  powers  is  apparent  from  the  consideration,  that  whatever  is 
expedient  to  be  done,  within  the  limits  imposed  by  the  funda 
mental  law,  and  whatever,  therefore,  it  may  presume  the  sov 
ereign,  in  the  case  supposed,  would  order  to  be  done,  some 
agency,  in  all  governments  pretending  to  be  adequate  to  per 
petuate  their  own  existence,  must  have  authority  to  do.  The 
formation  and  establishment  of  the  fundamental  law  is,  in  all 
the  American  Constitutions,  regularly  the  work  of  Conventions 
acting  in  conjunction  with  the  electors.  On  the  other  hand,  no 
fact  is  better  settled  than  that,  beyond  the  province  thus  spe 
cially  set  apart  for  them,  neither  Conventions  nor  the  bodies  of 
electors  have  any  legislative  power.  They  can  neither  of  them 
pass  any  law  comprised  within  the  sphere  of  ordinary  legisla 
tion.1 

§  372.  In  relation  to  legislatures  proper,  however,  we  repeat, 
it  is  well  settled,  that  under  the  general  grant  of  legislative 
powers  contained  in  our  State  Constitutions,  they  are  compe 
tent  to  pass  all  laws  whatsoever,  not  fundamental  in  character, 
and  not  prohibited  either  by  the  laws  of  morality  or  by  the  Con 
stitutions  to  which  they  are  subject,  State  and  Federal.  Within 
these  limits,  the  only  question  our  legislators  are  bound  to  ask 
is,  Is  the  law  proposed  an  expression  of  what  is  truly  expedient 
to  be  done  ?  Nor  is  there  any  subject  so  sacred  but  that  legis 
lation  may  be  made  to  affect  it,  provided  the  boundaries  above 
prescribed  be  not  passed.  And  although  a  legislature  is  but  one 
of  many  coordinate  departments  in  the  government  of,  a  State, 
*o  each  of  which  a  separate  and  generally  well-defined  sphere 
of  activity  is  set  apart,  it  is  yet  possessed  of  powers  the  most 
wide-reaching  of  all  —  powers  most  nearly  sovereign,  and  in  a 
certain  sense  supplementary  to  those  of  all  the  others.  Some 
of  these  powers  are  vested  in  the  legislature  in  express  terms  by 
the  Constitution,  and  others  devolve  upon  it  by  necessary  impli 
cation,  as  being  involved  in  the  general  grant  of  legislative 

State  legislatures.  That  of  the  Congress  of  the  United  States  is  more  limited, 
being  confined  to  legislation  upon  subjects  expressly  defined  in  the  Federal  Con 
stitution. 

1  The  debates  of  our  Conventions  are  full  of  disavowals  of  a  right  on  the 
part  of  those  bodies  to  pass  ordinary  laws.  In  a  few  cases,  nevertheless,  it  must 
be  admitted,  that  right  has  been  claimed  as  a  part  of  a  general  claim  of  all  sov 
ereign  powers.  It  has  never  been  practically  asserted,  however,  except  in  a  few 
doubtful  cases,  which  will  be  considered  hereafter. 


RELATIONS   OF   THE   CONVENTION   TO   THE   LEGISLATURE.        349 

power.  Thus,  to  the  legislature  it  is  commonly  left  to  deter 
mine  the  details  of  the  organization,  and  often  the  operation  of 
the  other  departments  ;  as,  for  instance,  the  times  of  assembling 
of  the  electors  and  of  the  judiciary  ;  the  modes  of  their  proce 
dure,  and  in  the  case  of  the  latter,  the  establishment  of  its  cir 
cuits  and  of  its  inferior  tribunals ;  the  election,  in  certain  cases, 
of  executive  or  judicial  officers ;  in  other  cases  there  is  cast  upon 
it  or  upon  its  presiding  officers  the  exercise  of  the  functions  of 
those  two  departments.  Instances  of  these  powers  occur  on 
every  page  of  our  Constitutions. 

§  373.  Of  powers  implicitly  granted,  instances  are  equally 
numerous.  The  most  striking  are  those  which  occur  daily  upon 
the  happening  of  unexpected  events  requiring  instant  legislative 
interposition  to  prevent  evil  consequences  or  to  make  them 
subservient  to  the  public  good.  In  all  such  cases  it  is  the  legis 
lature  that  is  called  upon,  as  alone  possessing  the  power  to  do 
or  to  authorize  what  is  deemed  necessary  to  be  done.  Such 
conjunctures  commonly  find  the  executive  of  the  State  or  the 
judges  inert,  because  powerless,  unless  indeed  they  should  seize 
the  power  to  do  without  law  what  law  alone  could  render  legiti 
mate.  The  theory  of  our  governments  leaves  no  necessity  for 
such  usurpation,  except  in  the  single  case  of  inadequate  consti 
tutional  power ;  as,  where  the  acts  clearly  necessary  for  the  pub 
lic  safety  have  been  directly  prohibited  by  the  Constitution. 
Bating  this  extreme  and  perhaps  improbable  case,  there  remain 
those,  infinite  in  number,  in  which  our  legislatures,  under  a  grant 
of  general  legislative  powers,  are  enabled  to  supplement  the 
other  departments  of  the  government,  and  to  make  lawful  pro 
vision  for  the  unforeseen  exigencies  of  the  State. 

§  374.  Now  let  it  be  noted,  that  for  the  purposes  and  in  the 
crises  indicated,  the  legislature  is  the  only  agency  competent  to 
act.  The  electors  certainly  could  not  do  it,  for  it  is  their  sole 
and  exclusive  function  —  and  they  are  adequate  to  no  other  —  to 
elect  to  office  and  to  pass  in  a  general  way  upon  propositions 
for  constitutional  change ;  the  executive  could  not  do  it,  for  its 
business  is  simply  to  carry  into  effect  laws  passed  by  the  proper 
law-making  authority  ;  it  cannot  deliberate;  nor  could  the  judi 
ciary  do  it ;  for  their  province  is  limited  to  the  interpretation  of 
laws,  and  to  their  application  to  the  complicated  maze  of  facts 
arising  in  life  and  business.  If  neither  of  these  is  competent  to 


350  CAN   THE   LEGISLATURE   BIND   THE   CONVENTION  ? 

authorize  what  is  expedient  to  be  done  in  political  or  social  emer 
gencies,  unless  the  legislature  could  do  so,  the  State  would  be 
left  utterly  powerless,  except  where  there  could  be  shown  an  ex 
press  constitutional  provision  covering  the  case  —  a  condition 
likely  to  be  but  rarely  fulfilled. 

§  375.  Finally,  in  any  crisis  calling  for  legal  authority  to  act, 
and  where  no  constitutional  provision,  either  permissive  or  re 
strictive,  exists,  if  the  legislature  take  upon  itself,  within  the 
limits  of  a  wise  expediency,  the  power  to  act,  to  give  the  requi 
site  authority  and  direction,  there  is  no  department  of  the  gov 
ernment  that  can  question  its  right  to  do  so  ;  and  not  only  that, 
but  a  failure  to  act  would  stamp  it  as  false  to  its  duty.  Having 
all  legislative  power  within  the  limits  indicated,  the  making  of 
such  provisions  of  law  as  are  needed  to  save  the  State  from 
inconvenience,  loss,  or  danger,  defines  precisely  the  legitimate 
exercise  of  that  power.  To  do  it  is  its  imperative  duty.  For 
that  it  is  constitutionally  competent,  and  all  departments  of  the 
government,  all  agents  and  representatives  of  the  sovereign, 
charged  with  collateral  functions,  are  bound,  within  the  scope 
of  that  power,  to  obey  its  behests,  as  the  authentic  expression 
of  the  will  of  that  sovereign.1 

§  376.  Having  thus  two  legislative  bodies,  whose  spheres  of 
operation  are  distinct,  though  conterminous,  it  is  obvious  that 
numerous  questions  may  arise  between  them  as  to  their  relative 
jurisdictions  and  powers.  Of  these,  such  as  it  is  desirable  for 
us  now  to  consider  are  reducible  to  the  following  heads,  which 
will  be  considered  in  their  order,  namely  :  — 

(a).  Questions  relating  to  the  power  of  legislatures  to  bind 
Conventions,  or,  what  is  the  same  thing,  of  Conventions  to  nul 
lify  Acts  of  their  respective  legislatures ;  and 

(b).  Questions  as  to  the  power  of  Conventions  to  legislate  or 
to  exercise  functions  imposed  by  the  Federal  Constitution  espe 
cially  upon  legislatures. 

(a).  1.  Among  the  questions  of  the  first  class  the  most  gen 
eral  and  important  is  this :  admitting  the  right  of  a  legislature 
to  call  a  Convention  into  being  by  some  legislative  Act,  has  it 
the  further  right  to  impose  conditions,  restrictions,  or  limitations 
upon  its  action,  to  dictate  to  it  its  organization  or  modes  of 
proceeding;  in  short,  to  subject  it  in  any  way  or  to  any  ex- 
1  Vattel,  Law  of  Nations,  Book  L  ch.  iii.  §§  34,  35. 


CAN   THE  LEGISLATURE   BIND   THE   CONVENTION?  351 

tent  to  the  restraints  of  law  ?  If  so,  wherein,  and  to  what  ex 
tent? 

§  377.  The  theory  of  those  who  deny  to  a  legislature  power 
thus  to  bind  a  Convention,  is  simply  the  theory  of  conventional 
sovereignty,  to  which  allusion  has  been  so  frequently  made  in 
preceding  pages.  According  to  this  theory,  a  Convention  is  a 
virtual  assemblage  of  the  people,  a  representative  body  charged 
by  the  sovereign  with  the  duty  of  framing  the  fundamental  law, 
for  which  purpose  there  is  devolved  upon  it  all  the  power  the 
sovereign  itself  possesses  ;  in  short,  that,  for  the  particular  busi 
ness  with  which  it  is  charged,  a  Convention  is  possessed  of  sov 
ereign  powers,  by  virtue  of  which  it  overtops  all  the  other  gov 
ernmental  agencies.  Hence,  while  it  is  admitted,  that  by  reason 
of  the  occasional  and  extraordinary  character  of  the  Convention, 
the  word  by  which  its  assembling  is  to  be  made  a  legal  act  must 
be  spoken  by  the  legislature,  yet  it  is  contended,  that,  beyond 
that,  it  has  no  power  whatever  ;  or  if,  as  the  ultimate  concession, 
it  be  admitted  that  the  supervisory  power  of  the  legislature  con 
tinues  until  the  organization  of  the  Convention  is  completed, 
that  that  body,  when  organized,  being  in  a  condition  to  act 
independently,  all  right  of  external  control  over  it  eo  instanti 
ceases,  and  the  career  of  its  omnipotence  begins. 

§  378.  By  those,  on  the  other  hand,  who  assert  the  right  of  a 
legislature  to  bind  a  Convention,  it  is  contended,  that  the  latter 
is  in  no  proper  sense  of  the  term  and  to  no  extent  sovereign  ; 
that  it  is  but  an  agency  employed  by  the  sovereign  to  institute 
government ;  that  as  such,  even  if  it  were  invested  with  power 
to  act  definitively  to  an  equal  extent  with  some  other  depart 
ments  of  the  government,  there  would  be  no  special  sacredness 
attaching  to  it  by  reason  of  its  framing  the  fundamental  law  — 
no  such  dignity  as  ought  to  invest  it  with  a  primacy  before  all 
other  State  agencies ;  but  that,  when  it  is  considered,  on  the 
contrary,  that  a  Convention  has  no  such  power  to  act  defini 
tively,  but  that  it  is  a  body  having  the  general  characteristics  of 
a  legislature,  but  with  the  functions  and  organization  only  of 
a  committee,  it  would  be  not  only  preposterous  to  give  to  it  the 
rank  of  a  sovereign  power,  but  absurd  to  consider  it  entitled  to 
any  preponderating  influence  whatsoever  ;  that,  inasmuch,  there 
fore,  as  a  Convention  is  a  body  whose  assembling  is  occasional 
and  dependent  on  considerations  of  expediency,  it  follows  that 


352  CAN  THE  LEGISLATURE   BIND  THE   CONVENTION? 

the  legislature,  whose  function  it  is  especially  to  declare  and 
enforce  the  expedient,  is  the  proper  body  to  determine  the  time 
and  conditions  of  such  assembling ;  that  in  doing  so  it  would 
not  set  itself  above  the  Convention ;  it  would  simply  announce 
the  will  of  their  common  sovereign  in  relation  to  the  scope  of 
the  business  committed  to  a  coordinate  agency ;  and  that  in  the 
absence  of  constitutional  provisions,  the  extent  to  which  a  legis 
lature  may  prescribe  the  conduct  of  a  Convention  must  rest 
in  its  own  discretion,  subject  to  the  limitation,  that  its  require 
ments  must  be  in  harmony  with  the  principles  of  the  Con 
vention  system,  or,  rather,  not  inconsistent  with  the  exercise 
by  the  Convention  of  its  essential  and  characteristic  func 
tion. 

§%379.  Conceding,  then,  that  a  legislature  may  by  its  enact 
ments  bind  a  Convention,  it  remains  to  determine  to  what 
extent  it  may  do  so,  and  in  what  particulars.  In  relation  to  the 
extent  of  its  power,  it  may  be  said,  in  general,  as  intimated 
above,  that  a  legislature  is  to  be  governed  by  the  obvious  pro 
prieties  of  the  case,  which  require,  on  the  one  side,  that  it  should 
prescribe  whatever  a  prudent  foresight  should  indicate  as  proper 
and  expedient,  and,  on  the  other,  that  there  should  be  left  to  the 
Convention  liberty  to  discharge  its  essential  function  of  deliber 
ation.  Both  bodies  have  rights :  the  legislature,  the  right  to 
consult  for,  and,  by  prudent  regulations,  to  secure  the  public 
welfare ;  the  Convention,  the  right  to  execute  that  commission 
with  which  it  must  be  charged  in  order  to  be  a  Convention  at 
all.  And  there  is  really  no  antagonism  between  the  two.  Both 
act  for  the  same  principal,  and  they  are  hence  bound  each  so  to 
frame  or  to  construe  the  mandate  from  which  the  powers  of  the 
other  must  be  derived,  as  to  give  to  it  scope  and  freedom  in  the 
exercise  of  its  characteristic  functions.  Accordingly,  it  would 
seem  to  be  the  duty  of  a  legislature,  in  calling  a  Convention, 
to  avoid  hampering  it  in  its  proper  business,  which  is,  to  over 
haul  the  existing  Constitution,  ascertain  its  defective  or  obsolete 
provisions,  and  to  recommend  amendments  thereto.  Composed 
of  men  carefully  selected,  and  presumably  well  instructed  in 
regard  to  the  public  will,  it  would  be  unfair  to  suppose  a  Con 
vention  wholly  unqualified  to  determine  what  it  ought  and  what 
it  ought  not  to  recommend.  Without  now  denying,  therefore, 
the  right  of  a  legislature  to  indicate  the  subjects  on  which  a 


CAN   THE  LEGISLATURE  BIND  THE   CONVENTION?  353 

Convention  shall  deliberate,  and  to  forbid  it  to  overpass  certain 
limits,  the  expediency  of  exercising  such  a  right  would,  in  gen 
eral,  be  doubtful. 

§  380.  On  the  other  hand,  the  legislature  is  the  sentinel  on 
duty.  It  cannot  rightfully  abdicate  that  position.  In  conven 
ing  an  extraordinary  assembly,  constituting  unquestionably  the 
weak  side  of  our  institutions,  and  therefore  the  one  upon  which 
usurpation  may  be  expected  to  make  its  assaults,  it  must  see 
to  it  that  the  Republic  not  only  do  not  receive,  but  be  placed  in 
no  danger  of  receiving,  any  detriment.  It  cannot  excuse  itself 
from  insisting  that  a  Convention  shall  be  composed  of  members 
elected  from  amongst  the  most  intelligent  citizens  of  mature 
age,  according  to  regulations  fitted  to  secure  a  fair  representa 
tion  ;  that  its  numbers  shall  be  limited ;  that  the  body  shall  as 
semble  at  a  prescribed  time  and  place  ;  that  it  shall  be  organ 
ized  in  3,  particular  manner,  if  to  the  legislature  the  mode  of  its 
organization  shall  not  seem  a  matter  of  indifference  ;  that  its 
expenses  shall  be  certified  in  such  a  manner,  and  by  and  to 
such  officers,  as  shall  make  it  reasonably  certain  that  the  public 
funds  will  not  be  squandered  or  diverted  to  partisan  or  treason 
able  uses;  and  finally,  what  is  incomparably  more  important 
than  all  else,  that  it  shall  propose,  instead  of  enacting,  constitu 
tional  changes,  —  in  other  words,  that  the  fruit  of  its  labors 
shall  be  so  submitted  to  the  people  as  to  ascertain  authentically 
their  will  in  relation  to  it.  In  short,  it  is  in  general  the  right 
and  the  duty  of  a  legislature  to  prescribe  ivhen,  and  where,  and 
how  a  Convention  shall  meet  and  proceed  with  its  business,  and 
put  its  work  in  operation,  but  not  what  it  shall  do.  Without  re 
strictions  as  to  the  former  particulars,  the  Convention  would  be 
wholly  independent  of  the  existing  government,  and,  without 
restrictions  as  to  the  latter,  a  mere  echo  of  the  legislature  which 
called  it  together. 

§  381.  The  question  now  arises,  Suppose  the  legislature 
should  assume  to  dictate  to  the  Convention  what  it  should,  or 
what  it  should  not,  recommend,  would  the  latter  be  bound  to 
obey  ?  To  the  first  branch  of  the  question,  if  by  it  be  implied 
the  dictation  of  specific  measures,  and  not  that  of  the  general 
subjects  for  its  consideration,  the  answer  must  be  in  the  nega 
tive.  A  legislature  is  not  constitutionally  competent  to  do  an 
absurd  act ;  and  it  would  be  guilty  of  rank  absurdity  if  it  were 
23 


354  CAN   THE   LEGISLATURE   BIND   THE   CONVENTION? 

to  prescribe  to  a  deliberative  body  what  the  results  of  its  delib 
erations  should  be. 

But,  on  the  other  hand,  suppose  the  question  to  mean, 
whether,  if  the  legislature  should  issue  instructions  in  re 
gard  to  the  subjects  to  which  the  Convention  should  direct  its 
inquiries,  the  latter  would  be  bound  to  obey  ?  the  answer  must 
be,  that  it  would ;  for  that  would  be  emphatically  a  question  of 
expediency,  to  determine  which  is  more  appropriately  within 
the  province  of  a  legislature.  Although  the  Convention  might 
dissent  from  its  conclusion,  and,  in  fact,  represent  the  wiser 
opinion,  still  it  could  show  no  warrant  for  asserting  its  opinion 
in  opposition  to  that  of  the  legislature.  It  could  show  no  war 
rant  even  for  assembling,  except  the  Act  of  the  latter,  which  upon 
its  face  would  direct  the  exercise  of  its  delegated  powers  within 
certain  prescribed  limits.  It  clearly  could  not  rightfully  separate 
the  mandate  of  the  sovereign  into  two  parts,  one  for  obedience 
and  the  other  for  disobedience,  unless  obedience  to  both  were 
incompatible  with  the  exercise  of  its  functions  as  a  Convention 
at  all. 

§  382.  Similar  considerations  will  enable  us  to  answer  the 
other  branch  of  the  question,  namely,  Whether  the  Convention 
ought  to  obey,  should  the  legislature  prescribe  to  it  what  it 
should  not  enact  or  recommend  ?  It  is  believed  that  a  prohibi 
tion  of  this  character  would  be  imposed  only  when  the  convic 
tion  should  be  very  strong  and  general,  that  the  subjects  em 
braced  within  it  ought  not,  on  grounds  of  policy  or  of  principle, 
to  be  brought  into  discussion  at  all.  When  that  should  be  the 
case,  who  would  say  that  obedience  ought  not  to  be  accorded  to 
the  Act  imposing  the  restriction  ?  If  it  were  believed  that  nar 
row  or  partisan  views  lay  at  the  bottom  of  the  inhibition,  that 
would  furnish  a  reason  for  appealing  to  the  people  to  cause 
themselves  to  be  better  represented,  or  to  reconsider  their  opin 
ions,  but  not  for  disobedience  to  laws  constitutionally  passed. 
The  case,  indeed,  for  the  legislature  would,  at  the  worst,  stand 
thus :  A  body,  consisting  of  two  chambers,  and,  therefore,  prob 
ably  better  representing  the  diverse  interests  of  the  State,  differs 
in  its  views  of  the  expediency  of  particular  constitutional 
changes,  from  another  body,  chosen,  it  is  true,  at  a  later  day,  but 
comprised  in  a  single  chamber,  in  which  important  interests 
might  be  smothered  by  a  majority  ;  —  the  question  now  being, 


I  CAN  THE   LEGISLATURE  BIND   THE   CONVENTION  ?  355 

whose  views  are  to  prevail,  the  consideration,  that  fundamental 
laws  ought  to  embody  only  such  measures  as  have  ceased  to  be 
experimental,  as  express  fixed  and  settled  policy  —  a  condition 
that  could  not  be  fulfilled  so  long  as  the  measures  proposed 
should  be  subjects  of  party  conflict,  —  must  be  regarded  as  de 
ciding  it  in  favor  of  the  legislature  ;  for,  the  fact  that  such  a 
body  failed  to  approve  of  a  measure  would  indicate  that  it  is 
not  yet  ripe  for  harvest  as  a  fundamental  law;  while  the  fact 
that  a  single  chamber  expressly  approved  it,  would  not  neces 
sarily  indicate  the  contrary.  Neither  in  the  Electoral  College, 
nor  in  a  Convention,  is  there  any  device  by  which  a  minority, 
however  large,  can  cause  its  views  to  prevail,  or  prevent  those 
of  the  majority  from  prevailing.  In  legislatures,  the  division 
into  two  chambers  often  operates  to  produce  such  an  effect, 
measures  which  a  majority  of  all  the  representatives  balloting 
together  would  promptly  pass,  being  defeated,  when  there  is  re 
quired  to  pass  them  a  majority  in  two  houses.  More  emphati 
cally,  then,  the  fact  that  proposed  constitutional  changes  are  so 
little  desired,  that  they  not  only  fail  to  receive  the  sanction,  but 
receive  the  express  reprobation,  of  a  legislature  of  two  houses, 
is,  in  my  view,  conclusive  evidence,  that  they  are  as  yet  unripe 
for  adoption  as  parts  of  the  fundamental  code. 

§  383.  The  question  as  to  the  power  of  legislatures  to  bind 
Conventions  has  been  the  subject  of  discussion  in  many  bodies 
of  the  latter  description,  and  it  will  be  interesting  to  note  the 
views  entertained  and  the  decisions  arrived  at  regarding  it. 

The  earliest  discussion  of  the  question  arose  in  the  Federal 
Convention  of  1787.  It  is  well  known,  that  the  credentials  of 
the  delegates  to  that  body  restricted  them  to  the  simple  duty  of 
revising  and  reporting  amendments  to  the  Articles  of  Confeder 
ation.  With  some  difference  of  phraseology,  they  all,  with  the 
exception  of  those  of  the  delegates  from  New  Jersey,  which 
State  seems  to  have  taken  a  wider  view  of  the  perils  and  ne 
cessities  of  the  situation  than  any  other,  substantially  accorded 
in  this  limitation.1  The  credentials  of  the  delegates  from  New 
Jersey  thus  prescribed  the  purpose  of  the  meeting  :  —  "  For  the 
purpose  of  taking  into  consideration  the  state  of  the  Union,  as  to 
trade  and  other  important  objects,  and  of  devising  such  other  pro 
visions  as  shall  appear  to  be  necessary  to  render  the  Constitution 
of  the  Federal  government  adequate  to  the  exigencies  thereof." 
i  Elliott's  Deb.,  Vol.  I.  p.  163. 


356  CAN   THE  LEGISLATURE   BIND   THE   CONVENTION? 

The  credentials  of  the  delegates  from  Massachusetts  and  New 
York  authorized  them  to  meet  "  for  the  sole  and  express  purpose 
of  revising  the  Articles  of  Confederation,  and  reporting  to  Con 
gress  and  the  several  legislatures  such  alterations  and  provis 
ions  therein  as  shall,  when  agreed  to  in  Congress,  and  confirmed 
by  the  States,  render  the  Federal  Constitution  adequate  to  the 
exigencies  of  government  and  the  preservation  of  the  Union." 
It  would  be  difficult  by  any  fair  construction  to  find  in  this  lan 
guage  power  to  do  more  than  to  patch  up  the  old  Confedera 
tion  ;  and  there  is  no  room  for  doubt,  that  the  views  of  the 
people  at  the  time  the  Acts  were  passed  which  resulted  in  the 
assembling  of  the  Convention,  went  no  further  than  that.  But 
the  leading  statesmen  in  that  body  became  early  convinced, 
that  the  only  hope  for  the  Union  was  in  superseding  the  worth 
less  system  then  in  operation  by  a  national  government  with 
large  powers.  Accordingly,  on  the  introduction  of  what  is 
known  as  Mr.  Randolph's  plan,  soon  after  the  organization  of 
the  Convention,  and  from  that  time  on  to  the  close  of  its  ses 
sions,  it  was  never  doubtful  that  the  predominant  sentiment  of 
the  body  favored  that  plan,  as  containing  avowedly  the  features 
of  a  national  government.  And  it  thus  favored  it  against  the 
vigorous  protest  of  many  members,  who,  coming  from  the 
smaller  States,  opposed  such  a  plan  as  likely  to  lessen  their  pro 
portionate  weight  in  the  Union.  By  the  latter,  the  argument  was 
strongly  pressed,  and,  but  for  the  circumstances  of  the  times,  it 
would  have  prevailed,  that  the  Convention  was  bound  by  the 
terms  of  the  Acts  under  which  it  assembled  to  confine  itself  to  the 
limits  they  prescribed.  The  majority  of  the  Convention,  however, 
resolved,  in  spite  of  those  restrictions,  to  recommend  a  national 
government;  but  they  did  it  on  the  ground  of  necessity,  as  the 
only  hope  left  for  preserving  peace  and  the  Union,  and  many  of 
them  despaired  even  then  of  preserving  either  the  one  or  the 
other. 

§  384.  Thus,  in  the  debate  on  Mr.  Randolph's  plan,  as  con 
trasted  with  that  reported  by  Mr.  Paterson,  known  as  the  New 
Jersey  plan,  which  proposed  simply  a  modification  of  the  exist 
ing  Confederation,  to  the  objection,  that  the  powers  of  the  Con 
vention  did  not  extend  to  the  adoption  of  a  national  govern 
ment,  Mr.  Randolph  said  :  — 

"  The  resolutions  from  Virginia  must  have  been  adopted  on 


CAN   THE   LEGISLATURE   BIND   THE    CONVENTION?  357 

the   supposition   that   a    Federal   government   was  impractica 
ble.     And  it  is    said  that  power  is  wanting  to  institute  such 
a  government ;    but  when  our  all  is  at  stake,  I  will  consent 
to  any   mode  that  will   preserve   us."1  ....  "There    are  rea-^~ 
sons  certainly  of  a  peculiar  nature  when  the  ordinary  cautions 
must   be    dispensed    with  ;    and   this  is  certainly  one  of  them. 
When  the    salvation  of  the  Republic    was  at  stake,  it  would  / 
be  treason  to  our  trust  not  to  propose  what  we  found  neces/ 
sary."  2 

Mr.  Mason  "  thought  with  his  colleague,  Mr.  Randolph,  that 
there  were  ....  certain  crises  in  which  all  ordinary  cautions 
yielded  to  public  necessity.  He  gave,  as  an  example,  the  eventual 
treaty  with  Great  Britain,  in  forming  which  the  commissioners 
of  the  United  States  had  wholly  disregarded  the  improvident 
shackles  of  Congress ;  had  given  to  their  country  an  honorable 
and  happy  peace  ;  and  instead  of  being  censured  for  the  trans 
gression  of  their  powers,  had  raised  to  themselves  a  monument 
more  durable  than  brass."  3 

§  385.  On  the  other  hand,  Mr.  Hamilton  deemed  the  estab 
lishment  of  a  national  system  to  be  within  the  scope  of  their 
powers  under  their  credentials.  In  support  of  that  view  he  said  : 
—  "  Let  us  now  review  the  powers  with  which  we  are  invested. 
We  are  appointed  for  the  sole  and  express  purpose  of  revising 
the  confederation,  and  to  alter  or  amend  it,  so  as  to  render  it 
effectual  for  the  purposes  of  a  good  government.  Those  who 
suppose  it  to  be  federal,  lay  great  stress  on  the  terms  sole  and 
express,  as  if  those  words  intended  a  confinement  to  a  Federal 
government,  when  the  manifest  import  is  no  more  than  that  the 
institution  of  a  good  government  must  be  the  sole  and  express 

object  of  your  deliberations I  have,  therefore,  no  difficulty 

as  to  the  extent  of  our  powers."  4 

In  this  construction-  of  their  credentials,  however,  Mr.  Hamil 
ton  was  alone,  and,  as  we  have  said,  it  was  conceded  with  almost 
perfect  unanimity,  both  in  the  Federal  Convention  and  in  those 
held  in  the  States  to  pass  upon  the  Constitution  framed  by  it, 
that  in  recommending  that  instrument,  instead  of  merely  pro- 

1  Yates'  Minutes,  in  Elliott's  Deb.,  Vol.  I.  pp.  415,  416. 

2  Elliott's  Deb.,  Vol.  V.  p.  197.     (Madison's  Report.) 

3  Id.  p.  216. 

*  Yates'  Minutes,  in  Elliott's  Deb.,  Vol.  I.  pp.  417,  418. 


858  CAN   THE  LEGISLATURE   BIND   THE   CONVENTION  ? 

posing  amendments  to  the  Articles  of  Confederation,  the  dele 
gates  to  the  former  had  exceeded  their  powers. 

§  386.  For  the  purposes  of  this  inquiry,  it  is  sufficient  to  note 
respecting  the  action  of  the  Federal  Convention  in  this  case,  — 

1.  That  it  is  a  case  of  refusal,  on  the  part  of  a  Convention, 
to  obey  the  instructions  of  the  legislative  authority  by  which  it 
was  convened,  in  relation  to  the  scope  and  general  character  of 
the  system  it  should  mature ;  but, 

2.  That  the  Convention  did  not  claim  a  right  to  disobey,  to 
annul,  or  even  to  suspend  the  Acts  under  which  it  assembled ; 
that,  on  the  contrary,  it  admitted,  implicitly,  the  binding  force 
of  those  Acts,  which  yet  it  felt  itself  constrained  by  necessity  to 
disregard.     Admitting  obedience  to   be   due,  it  pronounced  it, 
under  the  circumstances,  to  be  impossible. 

3.  Finally,  that  whichever  construction,  put  upon  the  creden 
tials  of  the  Convention,  be  the  true  one,  that  of  Mr.  Hamilton, 
or  that  of  Mr.  Randolph  and  others,  the  action  of  that  body  is 
equally  without  weight  as  a  precedent  to  establish  the  right  of 
such  a  body  to  disobey  the  Act  that  convened  it,  for  on  the  con 
struction  of  Mr.  Hamilton,  there  was  no  disobedience,  and  on 
that  of  Mr.  Randolph,  the  disobedience  was  confessed  and  re 
gretted,  but  excused  on  the  ground  of  necessity. 

§  387.  The  next  case  in  which  the  question  of  the  right  of  a 
legislature  to  bind  a  Convention  by  the  Act  calling  it,  came  in 
question,  was  that  of  the  North  Carolina  Convention  of  1835, 
to  which  attention  has  already  been  called. 

By  the  Act  of  January  6,  1835,  Sec.  12,  it  was  provided,  that 
the  Convention  thereby  called  should  frame  and  devise  three 
amendments  to  the  Constitution,  namely,  to  reduce  the  number 
of  members  in  the  Senate,  to  reduce  the  number  of  members  in 
the  House  of  Commons,  and  to  effect  a  change  indicated  in  the 
qualifications  of  voters ;  it  then  provided,  that  the  Convention 
might,  in  its  discretion,  propose  nine  other  amendments  specified, 
or  any  one  or  more  of  them.  After  providing  for  submitting 
such  amendments  as  the  body  should  propose,  to  the  people,  the 
Act  concluded  by  declaring,  that  the  Convention  should  not  alter 
any  other  Article  of  the  Constitution  or  Bill  of  Rights,  nor  pro 
pose  any  amendments  to  the  same,  except  those  which  were 
therein  before  enumerated.  The  10th  Section  of  the  Act  had 
provided,  that  no  delegate  should  take  his  seat  in  Convention 


CAN  THE  LEGISLATURE  BIND   THE   CONVENTION  ?  359 

until  he  should  have  taken  an  oath  not  to  evade  or  disregard 
the  duties  enjoined,  or  the  limits  fixed  to  the  Convention  by  that 
Act  A  discussion  arising,  on  the  first  assembling  of  the  Con 
vention,  whether  that  body  was  bound  by  the  Act  to  take  the 
oath  prescribed,  it  was  contended  by  some  that  the  legislature 
had  no  right  to  impose  an  oath,  and  that  consequently  they 
were  not  bound  to  regard  the  Act.  It  was  also  suggested,  that 
the  Convention  could  go  further  and  disregard  the  injunctions 
and  limitations  of  the  legislature  in  relation  to  the  amendments 
it  should  propose,  citing  as  authority  for  that  view,  the  alleged 
precedent,  just  commented  upon,  in  the  Federal  Convention. 
On  the  whole,  however,  better  counsels  prevailed.  The  Con 
vention  was  reminded  by  the  Hon.  Mr.  Gaston,  that  it  was  only 
by  obedience  to  the  requirements  of  the  Act  in  relation  to  the 
oath,  that  it  could  become  organized.  Without  first  having 
taken  the  oath,  no  member  could  take  his  seat;  and  having  taken 
the  oath,  the  limitations  of  the  Act  could  not  be  disregarded 
without  perjury.  Unlike  the  Federal  Convention,  therefore, 
which  was  constrained  by  necessity  to  disobey  the  Acts  under 
which  it  assembled,  the  North  Carolina  Convention  was  con 
strained  by  necessity  to  obey  them,  and  hence  the  cases  may 
be  thought  to  be  equally  indecisive  as  precedents  upon  the  ques 
tion  we  are  discussing. 

§  388.  In  1833,  a  judicial  opinion  was  delivered  by  the  judges 
of  the  Supreme  Court  of  Massachusetts,  which  has  some  bear 
ing,  perhaps,  upon  the  question  of  the  binding  force  of  Acts  of 
Assembly  upon  Conventions.  The  facts  of  the  case,  as  derived 
from  the  opinion,  are,  that  the  legislature  of  Massachusetts,  hav 
ing  under  consideration  a  proposition  for  calling  a  Convention 
to  revise  the  Constitution,  and  desiring  to  limit  the  latter  to  par 
ticular  amendments,  entertained  a  doubt  whether  or  not  that 
body  would  be  bound  to  respect  the  limits  it  should  impose,  and 
accordingly  the  House  of  Representatives  requested  the  opinion 
of  the  Supreme  Court  upon  the  following  question,  namely, 
"  Whether,  if  the  legislature  should  submit  to  the  people  to  vote 
upon  the  expediency  of  having  a  Convention  ....  for  the 
purpose  of  revising  or  altering  the  Constitution  of  the  Common 
wealth  in  any  specified  parts  of  the  same,  and  a  majority  of 
the  people  voting  thereon  should  decide  in  favor  thereof,  could 
such  Convention,  holden  in  pursuance  thereof,  act  upon  and 
propose  to  the  people,  amendments  in  other  parts  of  the  Consti- 


360  CAN   THE   LEGISLATURE   BIND    THE   CONVENTION? 

tution  not  so  specified  ?  "  Upon  this  question  the  Court  said  :  — 
"  Considering  that  the  Constitution  has  vested  no  authority  in 
the  legislature  in  its  ordinary  action  to  provide  by  law  for  sub 
mitting  to  the  people  the  expediency  of  calling  a  Convention  of 
delegates  for  the  purpose  of  revising  or  altering  the  Constitution 
of  the  Commonwealth,  it  is  difficult  to  give  an  opinion  upon 
the  question  what  would  be  the  power  of  such  a  Convention,  if 
called.  If,  however,  the  people  should,  by  the  terms  of  their 
vote,  decide  to  call  a  Convention  of  delegates,  to  consider  the 
expediency  of  altering  the  Constitution  in  some  particular  part 
thereof,  we  are  of  opinion,  that  such  delegates  would  derive 
their  whole  authority  and  commission  from  such  vote;  and 
upon  the  general  principles  governing  the  delegation  of  power 
and  authority,  they  would  have  no  right,  under  such  vote,  to 
act  upon  and  propose  amendments  in  other  parts  of  the  Consti 
tution  not  so  specified." l 

§  389.  Whether  the  general  idea  contained  in  this  opinion 
respecting  the  source  of  the  validity  of  the  supposed  limitations 
upon  the  action  of  the  Convention,  namely,  that  it  was  to  be 
sought  alone  in  the  vote  of  the  people,  be  a  correct  one  or  not, 
will  be  the  subject  of  consideration  further  on.  Assuming  for 
the  present,  however,  that  the  idea  was  a  mistaken  one,  and  that 
those  limitations  derived  their  binding  force  from  the  Act  of  As 
sembly  either  alone  or  in  conjunction  with  the  subsequent  ex 
pression  of  popular  approval,  the  Act  being  considered,  in  either 
event,  as  an  act  of  ordinary  legislation,  the  views  expressed  by 
the  Court  would  seem  to  indicate  that  a  Convention  might  be 
bound  by  an  Act  of  a  legislature.  The  Court  admit,  that,  in  the 
case  supposed,  the  Convention  would  not  be  competent  to  over 
pass  the  limits  imposed  by  the  vote  of  the  people  by  which  it 
was  called ;  from  that  vote  "  they  would  derive,"  say  they,  "  their 
whole  commission  and  authority ; "  "  and  upon  the  general  prin 
ciples  governing  the  delegation  of  power  and  authority,  they 
would  have  no  right,  under  such  vote,  to  act  upon  and  propose 
amendments  in  other  parts  of  the  Constitution  not  so  specified." 
But  suppose  it  were  demonstrated  that  the  efficacy  of  the  call, 
with  its  limitations,  depended  not  on  the  vote  of  the  people,  but 
on  the  Act  of  the  legislature,  preceding  and  requiring  such  vote, 
can  it  be  doubted  that  the  Convention  would  be  equally  bound 

1  Opinion  of  the  Justices  of  the  Supreme  Judicial  Court,  &c.,  6  Gush.  R.  573. 
See  Appendix  C.,  post. 


CAN   THE  LEGISLATURE  BIND  THE   CONVENTION  ?  361 

by  it?  The  Act  then  would  constitute  its  commission,  the 
source  from  which  all  its  authority  would  be  derived  ;  and  the 
principles  governing  the  delegation  of  power  and  authority  would 
seem  as  much  as  ever  to  establish  that,  under  such  a  law,  it 
would  have  no  right  to  act  upon  or  propose  amendments  in 
other  parts  of  the  Constitution  not  specified  in  it.  It  becomes 
important  then  to  determine,  if  possible,  the  true  source  of  the 
validity  of  the  call  of  a  Convention  made  under  such  circum 
stances.  Does  it  flow  from  the  power  of  the  legislature,  or  from 
the  power  of  the  people  giving  its  sanction  to  what  a  legislature 
has  recommended  ? 

§  390.  This  interesting  and  perplexing  question  has  been  the 
subject  of  extended  discussion  in  several  Conventions.  It  arose 
in  New  York,  in  1846,  upon  the  following  facts.  In  1845,  the 
legislature  of  the  State  had  passed  an  Act  recommending  to  the 
people  a  Convention,  and  prescribing  the  manner  in  which  it 
was  to  be  elected  and  held.  By  this  Act  it  was  provided,  that 
the  people,  at  the  fall  election  of  that  year,  should  pass  upon 
the  question  of  Convention  or  no  Convention,  and  if  they  should 
decide  for  a  Convention,  that  the  delegates  were  to  be  chosen  in 
April,  1846,  and  to  assemble  in  June  of  the  same  year.  It  was 
also,  by  the  seventh  section,  provided,  that  "  the  number  of  del 
egates  to  be  chosen  to  such  Convention  shall  be  the  same  as  the 
number  of  members  of  Assembly  from  the  respective  cities  and 
counties  in  this  State." 

By  the  existing  Constitution  of  New  York,  the  apportionment 
of  members  of  the  General  Assembly  made  in  the  spring  of 
1836,  took  effect  for  the  purpose  of  electing  the  members  in  the 
fall  of  that  year,  but  not  for  any  other  purpose,  until  the  first 
day  of  January,  1837  ;  and  it  was  to  remain  unaltered  for  ten 
years.  In  other  words,  the  representation  from  "  the  respective 
cities  and  counties"  of  the  State,  in  the  Assembly,  from  the 
commencement  of  the  political  and  calendar  year  1837,  to  the 
commencement  of  the  political  and  calendar  year  1847,  was  to 
remain  the  same.  When  the  legislature  met  in  the  early  part 
of  the  year  1846,  after  the  Act  calling  the  Convention  had  been 
ratified  by  the  people,  but  before  the  delegates  had  been  elected 
under  it,  an  Act  was  passed  making  a  new  apportionment  of 
representatives  to  the  Assembly,  increasing  the  number,  and  a 
bill  was  introduced  for  an  Act  providing  that  the  number  of 


362  CAN   THE   LEGISLATURE   BIND   THE   CONVENTION? 

delegates  to  be  chosen  in  and  by  the  respective  cities  and  coun 
ties  to  the  Convention,  to  be  held  by  virtue  of  the  Act  of  1845, 
should  be  the  same  as  the  number  of  members  of  the  Assembly, 
to  be  chosen  in  pursuance  of  the  new  apportionment.  In  other 
words,  the  Act  calling  the  Convention  was  proposed  to  be  modi 
fied  by  the  body  which  had  originally  passed  it,  after  it  had  been ' 
voted  upon  by  the  people. 

§  391.  Upon  this  bill,  a  question  was  raised  as  to  the  power 
of  the  legislature  —  whether  it  could  change  the  rule  of  appor 
tionment,  as  applicable  to  the  Convention,  prescribed  in  the  Act 
voted  on  by  the  people.  The  subject  was  referred  to  the  judges 
of  the  Supreme  Court  of  the  State  for  their  opinion,  who  de 
cided  — 

First,  that  the  new  apportionment  for  members  of  the  Assem 
bly  not  taking  effect  until  the  first  day  of  January,  1847,  the 
provision  of  the  Convention  Act  of  1845,  to  the  effect,  that  "  the 
number  of  delegates  to  be  chosen  to  such  Convention  shall  be 
the  same  as  the  number  of  members  of  Assembly  from  the  re 
spective  cities  and  counties  in  this  State,"  meant  the  number  of 
members  to  which  they  were  entitled  under  the  apportionment 
in  force  when  the  Act  of  1845  was  passed,  and  which  would  be 
in  force  until  after  the  delegates  had  been  chosen  and  their  labors 
terminated ;  and,  secondly,  that  inasmuch  as  the  existing  Con 
stitution  had  omitted  to  confer  upon  the  legislature  any  power 
to  call  a  Convention,  the  Act  passed  for  that  purpose  and 
referred  to  the  people  was  beyond  its  jurisdiction,  and  could 
operate  only  by  way  of  advice  or  recommendation,  and  not  as  a 
law ;  that,  under  such  circumstances,  the  calling  of  a  Conven 
tion  was  an  act  proper  only  for  the  people  themselves ;  and  that, 
consequently,  the  Act  of  1845  derived  its  obligation  from  the 
popular  vote  of  ratification  and  not  from  the  power  of  the  legis 
lature  to  pass  it.  From  this,  the  inference  was  drawn  that  the 
legislature  had  no  power  to  suspend  or  alter  any  of  the  pro 
visions  of  that  Act.1 

§  392.  In  the  course  of  this  opinion  the  Court  say  :  — 

"  The  legislature  is  not  supreme.  It  is  only  one  of  the  instru 
ments  of  that  absolute  sovereignty  which  resides  in  the  whole 
body  of  the  people.  Like  other  departments  of  the  government, 

1  For  this  opinion,  see  Appendix  D,  post ;  also  Deb.  Mass.  Conv.  1853,  Vol. 
I.  p.  138.  I  have  not  found  it  in  the  New  York  Law  Reports. 


CAN   THE    LEGISLATURE   BIND   THE   CONVENTION?  363 

it  acts  under  a  delegation  of  powers,  and  cannot  rightfully  go 
beyond  the  limits  which  have  been  assigned  to  it.  This  delega 
tion  of  powers  has  been  made  by  a  fundamental  law,  which  no 
one  department  of  the  government,  nor  all  the  departments 
united,  have  authority  to  change.  That  can  only  be  done  by 
the  people  themselves.  A  power  has  been  given  to  the  legisla 
ture  to  propose  amendments  to  the  Constitution,  which,  when 
approved  and  ratified  by  the  people,  become  a  part  of  the  fun 
damental  law.  But  no  power  .has  been  delegated  to  the  legis 
lature  to  call  a  Convention  to  revise  the  Constitution.  That  is  a 
measure  which  must  come  from  the  people  themselves.  Neither 
the  calling  of  a  Convention,  nor  a  Convention  itself,  is  a  pro 
ceeding  under  the  Constitution.  It  is  above  and  beyond  the 
Constitution.  Instead  of  acting  under  the  forms  and  within 
the  limits  prescribed  by  that  instrument,  the  very  business  of  a 
Convention  is  to  change  those  forms  and  boundaries,  as  the 
public  interests  may  seem  to  require.  A  Convention  is  not  a 
government  measure,  but  a  movement  of  the  people,  having  for 
its  object  a  change,  in  whole  or  in  part,  of  the  existing  form  of 
government. 

"  As  the  people  have  not  only  omitted  to  confer  any  power  on 
the  legislature  to  call  a  Convention,  but  have  also  prescribed 
another  mode  of  amending  the  organic  law,  we  are  unable  to 
see  that  the  Act  of  1845  had  any  obligatory  force  at  the  time 
of  its  enactment.  It  could  only  operate  by  way  of  advice  or 
recommendation,  and  not  as  a  law.  It  amounted  to  nothing 
more  than  a  proposition  or  suggestion  to  the  people,  to  decide 
whether  they  would  or  would  not  have  a  Convention.  That 
question  the  people  have  settled  in  the  affirmative,  and  the  law 
derives  its  obligation  from  that  Act,  and  not  from  the  power  of 
the  legislature  to  pass  it.  The  people  have  not  only  decided  in 
favor  of  a  Convention,  but  they  have  determined  that  it  shall  be 
held  in  accordance  with  the  provisions  of  the  Act  of  1845.  No 
other  proposition  was  before  them,  and  of  course  their  votes 
could  have  had  reference  to  nothing  else.  They  have  decided 
on  the  time  and  manner  of  electing  delegates,  and  how  they 
shall  be  apportioned  among  the  several  counties. 

"  If  the  Act  of  the  last  session  is  not  a  law  of  the  legislature, 
but  a  law  made  by  the  people  themselves,  the  conclusion  is  ob 
vious,  that  the  legislature  cannot  annul  it  nor  make  any  sub- 


364  CAN   THE   LEGISLATURE   BIND   THE   CONVENTION? 

stantial  change  in  its  provisions.  If  the  legislature  can  alter  the 
rule  of  representation,  it  can  repeal  the  law  altogether,  and  thus 
defeat  a  measure  which  has  been  willed  by  a  higher  power." 

§  393.  Now,  in  reference  to  this  opinion,  which,  as  being  that 
of  a  highly  respectable  court  of  final  resort  in  the  most  impor 
tant  State  in  the  Union,  seems  to  be  possessed  of  very  great 
authority,  the  following  observations  occur  to  me  as  justified  as 
well  by  its  tenor  as  by  the  circumstances  under  which  it  was 
rendered. 

1.  The  opinion  was  extrajudicial.      The  Constitution  of  the 
State  did   not  authorize  the  legislature,  much  less  one  of  its 
separate  houses,  to  refer  questions  arising  in  the  course  of  its 
deliberations  to  the  judiciary  for  adjudication.    In  point  of  legal 
authority,  therefore,  it  is  entitled  to  no  greater  weight  than  it 
deserves  on  account  of  its  intrinsic  wisdom. 

2.  How  much  authority  the  opinion  ought  to  carry  with  it  on 
this  account,  may  be  inferred  from  the   estimate   put  upon  it 
by  the  judges  themselves.     In  the  concluding  paragraph  they 
say  :  — 

"  We  cannot  close  this  communication  without  expressing 
our  regret  that  questions  of  so  much  delicacy  and  importance 
should  be  presented  under  circumstances  which  have  given  but 
a  few  hours  for  conferring  together,  and  reducing  our  opinion  to 
writing.  Neither  of  us  had  either  examined  or  thought  of  the 
questions  until  after  the  reference  was  made ;  and  it  was  not 
until  this  day  that  we  were  able  to  meet  and  consult  together 
on  the  subject." 

3.  What  its  authors  thus  seemed  to  regard  as  deserving  of 
little   consideration,  was   certainly  so  esteemed  by  the  legisla 
ture.     That  body  entirely  disregarded  the  legal  determinations 
of  the  Court  on  the  question  of  power.     It  also  disregarded, 
not  without  an  appearance  of  contempt,  a  positive  recommen 
dation  which  the  opinion  contained.     After  declaring  that  the 
legislature  had  no  power  to  pass  the  law  then  under  consider 
ation,   the    judges    added,   that   "  if,    however,   the    legislature 
should  think  otherwise,  it  is  then  proper  that  we  should  take 
some  notice  of  the  bill  which  has  been  referred  for  our  consider 
ation."     Accordingly,  observing  that  the  bill  in  its  terms  merely 
declared  that  the  true  intent  and  meaning  of  so  much  of  the 
Convention  Act  of  1845,  as  related  to  the  number  of  delegates 


CAN  THE  LEGISLATURE  BIND   THE   CONVENTION?  365 

to  be  chosen  to  the  Convention,  was,  that  that  number  should 
be  the  same  as  the  number  of  members  of  the  Assembly,  ac 
cording  to  the  apportionment  of  1845,  the  judges  said  that,  in 
their  opinion,  such  was  not  the  true  intent  and  meaning  of  said 
Act,  and  they  therefore  recommended  that,  if  it  was  deemed  ex 
pedient  to  legislate  on  the  subject,  there  should  be  a  positive 
enactment,  instead  of  a  mere  declaration  of  opinion.  In  spite 
of  this  recommendation,  however,  the  legislature  passed  the 
bill,  in  the  precise  form  it  bore  when  referred  to  the  judges. 
To  this  it  may  be  added,  that  the  people  in  like  manner  disre 
garded  the  opinion;  for  they  elected  their  delegates  according 
to  the  new  apportionment. 

§  394.  4.  Coming  to  the  substance  of  the  opinion,  there  is  con 
tained  in  it,  in  my  judgment,  with  much  that  is  excellent,  much 
also  that  is  fallacious  and  of  the  worst  possible  tendency.  With 
the  latter  is  to  be  classed  all  those  parts  of  it  which  relate  to  the 
power  of  a  legislature  to  call  a  Convention  ;  to  the  essential 
character  and  relations  of  the  latter  to  the  existing  government, 
and  to  the  source  whence  is  derived  the  efficacy  of  a  law  calling 
a  Convention  under  the  circumstances  detailed  in  the  opinion. 
What  I  have  to  say  upon  the  last  point  will  be  deferred  till  the 
case  arising  in  the  Massachusetts  Convention  of  1853,  in  which 
the  same  question  was  broached,  is  brought  under  discussion. 
The  two  other  points  will  be  briefly  considered  here. 

I.  The  assertion,  that  where  express  authority  to  call  a  Con 
vention  has  not  been  given  by  the  Constitution,  a  legislature 
has  no  power  to  do  it,  I  deem  to  be  unfounded,  for  two  reasons  : 
first,  as  contravening  sound  political  principles ;  and  secondly, 
as  falsified  by  well-established  usage  under  the  American  sys 
tem. 

First.  It  has  been  seen  in  previous  sections  of  this  chapter, 
that  under  the  general  grant  of  legislative  power  found  in  our 
State  Constitutions,  a  legislature  is  competent  to  provide  by 
law  for  all  exigencies  requiring  provisions  of  a  legislative  nature, 
so  far  as  it  is  not  restrained  by  the  rules  of  morality,  or  by  ex 
press  constitutional  inhibitions.  In  my  view,  this  covers  the 
whole  case.  The  making  of  provision  for  the  assembling  of 
Conventions,  and  the  hedging  of  them  about  with  the  restric 
tions  needed  as  well  for  their  efficiency  as  for  the  safety  of  the 
Commonwealth,  is  emphatically  a  matter  of  legislation.  It  is, 


366  CAN   THE  LEGISLATURE  BIND  THE   CONVENTION? 

moreover,  a  matter  of  legislation  not  fundamental  in  character, 
but  of  that  species  which  our  Constitutions  apportion  exclu 
sively  to  the  legislative  departments  created  by  them.  The 
legislation  necessary  to  initiate  and  to  temper  the  operations  of 
a  Convention,  no  department  of  the  government  is  competent 
to  effect  but  the  legislature ;  the  sovereign  itself  could  not  do 
it,  nor  the  electors,  —  bodies  whose  organization  is  such  as  to 
make  deliberation  upon  the  details  of  laws  impossible. 

§  395.  Nor  is  it  true,  as  intimated  by  the  judges  in  the  opin 
ion,  that  the  giving 'to  the  legislature  in  a  Constitution  express 
power  to  recommend  specific  amendments  to  that  instrument, 
involves,  by  implication,  the  denial  to  that  body  of  power  to 
call  Conventions  for  a  general  revision  of  it.  We  shall  see  in  a 
subsequent  part  of  this  work,1  that  such  a  grant  is  applicable 
only  to  disconnected  and  unimportant  amendments.  It  is  obvi 
ous  that  a  grant  of  power  to  propose  such  amendments  in  a 
summary  manner,  and  without  the  formalities  ordinarily  attend 
ing  the  enactment  of  fundamental  laws,  cannot  be  considered 
as  an  implied  prohibition  to  effect  a  general  revision  of  a  Con 
stitution  in  the  only  way  possible,  that  is,  by  the  call  of  a 
Convention.  If  it  be  not  in  the  power  of  a  legislature  to  call 
a  Convention,  that  fact  is  not  to  be  inferred  from  a  positive 
authority  to  effect  a  different  object  in  a  different  way.  The 
idea  advanced  by  the  Court  is  based  on  the  legal  maxim,  ex- 
pressio  unius  est  exclusio  altering,  —  a  maxim  doubtless  of  wide 
application  in  the  construction  of  ordinary  statutes,  and  of  con 
tracts  between  man  and  man,  but  whose  applicability  to  the 
construction  of  fundamental  laws  has  been  denied  by  high 
judicial  authority.2 

§  396.  Secondly.  It  is  too  late  to  deny  the  right  of  a  legisla 
ture,  in  the  absence  of  express  constitutional  authority,  to  call 
a  Convention,  and  in  general  to  impose  upon  it  conditions  in 
relation  to  its  organization,  and,  to  some  extent,  its  proceedings. 
Though  doubtless  considered  irregular  in  its  earlier  stages,  the 
usage  has  become  established  for  legislatures  to  take  the  initia 
tive  in  such  cases,  as  of  course;  and  since  the  year  1820,  when 
the  New  York  Council  of  Revision  vetoed  a  Convention  Bill 

1  See  post,  §§  538-540. 

2  Barto   v.  Himrod,  4    Selden's  R.   483    (493),  per   Willard,  J.     See  also 
Broom's  Legal  Maxims,  pp.  540,  541. 


CAN    THE  LEGISLATURE   BIND   THE   CONVENTION?  367 

because  the  legislature  had  passed  it  without  providing  for  a 
submission  of  it  to  the  people,  not  as  being  beyond  its  power, 
but  as  inexpedient,  the  power  has  very  frequently  been  exercised. 
The  eminent  judges  composing  that  council  did  not  question 
the  right  of  the  legislature  to  call  a  Convention,  but  insisted 
that  it  was  "  most  safe  and  wise,"  and  "  most  accordant  with 
the  performance  of  the  great  trust  committed  to  the  representa 
tive  powers  under  the  Constitution,"  that  Conventions  to  alter 
that  instrument  "  should  not  be  called  at  the  instance  of  the 
legislature  without  the  previous  sanction  of  the  people  ; "  and 
they  cite  numerous  instances  in  which  legislatures,  desiring  to 
call  Conventions,  were  required  by  constitutional  provision  to 
submit  the  question  of  the  expediency  of  so  doing  to  a  pop 
ular  vote.1  It  is  noticeable,  moreover,  that  the  General  Assem 
bly  of  New  York  had,  at  the  time  the  opinion  we  are  consider 
ing  was  delivered,  twice  exercised  the  power  in  that  opinion 
declared  to  be  so  doubtful,  —  once  in  1801,  without  submit 
ting  the  question  of  a  Convention  to  the  people  ;  and  again  in 
1821,  after  an  affirmative  vote  of  the  people,  pursuant  to  the 
advice  of  the  Council  of  Revision. 

The  first  point,  then,  made  by  the  Court,  relating  to  the 
power  of  the  legislature,  was  not  well  taken. 

§  397.  II.  The  other  point,  touching  the  character  and  rela 
tions  of  the  Convention  to  the  existing  government,  was  equally 
without  force.  The  judges  assert  that  "  neither  the  calling  of  a 
Convention,  nor  a  Convention  itself,  is  a  proceeding  under  the 
Constitution."  "  It  is,"  they  say,  "  above  and  beyond  the  Con 
stitution  ;"....  and  they  add,  "  a  Convention  is  not  a  gov 
ernment  measure,  but  a  movement  of  the  people,  having  for 
its  object  a  change  in  whole  or  in  part  of  the  existing  govern 
ment." 

Upon  these  extraordinary  statements  I  remark  — 

1.  That  they  all  beg  the  question,  —  in  my  judgment,  the 
most  important  question  in  American  public  law,  —  Whether, 
as  Justice  Wilson  said  in  the  Pennsylvania  Convention  to  ratify 
the  Federal  Constitution,  the  sovereignty  in  our  governments 
"  is  and  remains  in  the  people  ;  "  or  whether,  upon  the  call  of  a 
Convention,  it  shifts  its  locus  into  the  hands  of  a  majority  of  its 
members.  Of  the  proposition  that  "  a  Convention  is  not  a  pro- 
1  See  Appendix  B,  for  the  entire  opinion  of  the  Council. 


368  CAN  THE  LEGISLATURE  BIND   THE   CONVENTION  ? 

ceeding  under  the  Constitution,  but  above  it,"  what  evidence  is 
adduced  except  the  mere  dictum  of  the  judges  themselves,  pass 
ing  extra-officially  upon  a  question  of  infinite  magnitude,  on 
which,  as  they  admit,  they  had  heard  no  argument,  and  about 
which  they  had  never  thought  until  the  reference  was  made  four 
days  before,  or  consulted  together  until  the  very  day  the  opinion 
was  written  ? 

So  far  from  a  Convention  not  being  a  proceeding  under  the 
Constitution,  but  above  it,  it  is  one  of  the  chief  excellencies  of 
our  system  that,  under  it,  those  constitutional  reforms  which 
elsewhere  have  generally  required  for  their  consummation  out 
breaks  of  revolutionary  violence,  are  anticipated  and  carried 
through  by  the  voluntary  and  peaceable  operation  of  the  gov 
ernment  itself.  In  this  respect,  one  of  our  governments,  as  1 
have  many  times  intimated,  exhibits  the  qualities  of  a  vital 
organism,  in  which  are  bound  up  distinct  but  interdepend 
ent  systems,  whose  objects  are  respectively  the  defence,  the 
growth,  and  the  reparation  or  renewal  of  the  economy. 

On  the  other  hand,  the  theory  of  the  judges  supposes  in  the 
Commonwealth  two  independent  and  mutually  antagonistic 
orders  of  agencies  :  one  constituting  the  government,  charged 
with  the  regular  administration  of  the  laws,  and  responsible  for 
the  safety  of  the  public  liberties  ;  and  the  other,  forming  the 
Convention,  an  eccentric  and  irresponsible  body,  somehow 
launched  into  the  system,  to  play  havoc  with  the  Constitu 
tion  and  laws  lying  under  its  feet.  It  is  enough  to  exhibit,  side 
by  side,  the  two  theories  of  the  state,  to  see  which  is  the  true 
one.  The  one  regards  it  as  a  single,  complete,  living  organism, 
possessing  in  itself  all  the  powers  necessary  to  insure  its  ben 
eficent  operation  and  its  continuity.  The  other  makes  of  it  a 
dual  system  of  unrelated  and  hostile  organizations,  whose  ten 
dency  must  be  to  conspire,  not  for  the  good  of  the  whole,  but 
for  the  destruction  of  each  other. 

§  398.  So,  of  the  assertion  that  a  Convention  is  not  a  govern 
ment  measure.  If  by  that  is  meant  that  a  Convention  is  an  in 
stitution  which  can  legitimately  come  into  being,  and  run  its 
career,  in  opposition  to  the  government,  or  without  its  consent, 
supervision,  or  control,  the  statement  is  manifestly  untrue,  unless 
the  Convention  is  itself  the  government.  There  is  no  escaping 
from  this  dilemma.  If  the  government  retains  its  powers  at  all, 


CAN   THE   LEGISLATURE   BIND   THE    CONVENTION  ?  369 

it  must  retain  them  wholly,  and  it  must  govern  the  Convention 
as  well  as  individual  citizens.  If,  when  a  Convention  assembles, 
on  the  other  hand,  the  government  is  shorn  of  its  powers,  or  re 
tains  them  only  so  far  as  they  are  not  appropriated  by  the  Con 
vention,  it  ceases  to  be  the  government,  —  it  is  but  a  subaltern 
agency,  existing  only  by  the  sufferance  of  another,  which  is 
supreme. 

§  399.  Again.  The  judges  say  that  the  calling  of  a  Conven 
tion  "  is  a  measure  that  must  come  from  the  people  themselves." 
By  the  term  "  people  "  in  this  clause,  must  be  meant  either  the 
whole  body  of  the  nation,  that  is,  the  sovereign,  or  the  electoral 
body.  Whichever  was  intended,  nothing  could  be  more  absurd, 
if  it  was  meant  thereby  to  assert,  that  it  is  competent  for  the 
people  to  call  Conventions  and  carry  through  constitutional 
changes,  independently  of  the  existing  government.  If  the  leg 
islature,  as  the  judges  say,  "is  only  one  of  the  instruments  of 
that  absolute  sovereignty,  which  resides  in  the  whole  body  of 
the  people,"  the  coordinate  departments  which,  together  with 
the  legislature,  constitute  the  government,  must  be  authentic 
representatives  of  that  absolute  sovereignty ;  and  a  Convention 
can  be  nothing-  more.  Whatever,  then,  comes  from  the  govern 
ment,  acting  within  the  scope  of  its  powers,  comes  from  the 
people.  This  is  as  true  of  legislatures  as  of  Conventions.  The 
one  are  no  less  "  instruments  of  absolute  sovereignty,"  referred 
to,  than  are  the  other.  But  admitting  the  competency  of  the  peo 
ple  to  call  Conventions,  it  would  be  impracticable,  except  through 
legislative  interposition.  All  they  can  do  is,  to  pass  upon  propo 
sitions  submitted  to  them,  under  the  direction  of  some  agency 
having  power  to  deliberate,  and  not  too  numerous  to  assemble 
and  act  for  the  whole.  Any  other  course  would  lead  to  local 
and  conflicting  determinations.  It  is  perfectly  true,  that  the 
calling  of  a  Convention  is  a  measure  that  must  come  from  the 
people  themselves,  but  from  the  people  acting  through  their 
accustomed  and  recognized  agents,  not  through  persons  or  bod 
ies,  unknown  to  the  law,  self-elected  and  irresponsible. 

§  400.  In  the  Massachusetts  Convention  of  1853,  a  similar 
question  arose,  and  led  to  a  very  elaborate  discussion,  upon  a 
state  of  facts  not  unlike  those  above  detailed. 

In  a  former  part  of  this  chapter,1  we  have  seen,  that  a  question 

1  See  ante,  §§  340-347. 
24 


370  CAN   THE   LEGISLATURE   BIND   THE   CONVENTION? 

was  started  in  that  Convention  as  to  its  power  to  issue  a  pre 
cept  for  the  election  of  a  member  to  fill  a  vacancy,  from  the 
town  of  Berlin ;  that  the  Convention  decided  to  issue,  not  a 
precept,  but  a  simple  notice,  informing  the  town  of  the  vacancy, 
and  that,  on  motion  of  Mr.  Butler,  of  Lowell,  it  adopted  a  form 
of  notice,  of  which  the  concluding  and  material  part  was  as  fol 
lows  —  addressed  to  the  selectmen  of  the  town  :  —  .  .  .  .  "I  am 
directed,  by  a  vote  of  the  Convention,  to  request  you  to  convene 
the  qualified  electors  of  your  town,  as  soon  as  may  be  with  a 
due  regard  to  notice,  in  order  to  their  electing  and  deputing  a 
delegate  to  represent  them  in  this  Convention,  in  the  manner  pre 
scribed  by  the  second  section  of  the  Act  calling'  the  Convention, 
adopted  by  the  people  on  the  second  Monday  in  November,  A.  D. 
1852." 

Of  the  last  clause  of  this  notice,  upon  which  the  discussion 
arose,  the  meaning  is  this :  By  the  Act  of  May  7,  1852,  the 
question  of  calling  a  Convention  to  revise  the  Constitution  of 
Massachusetts,  was  to  be  submitted  to  the  people  of  the  State 
on  the  second  Monday  of  the  following  November,  the  Conven 
tion,  if  voted  for,  to  be  elected  on  the  first  Monday  of  March, 
1853,  and  to  meet  on  the  first  Wednesday  in  May,  1853.  It 
was  further  provided,  that  all  the  regulations  for  voting  at  the 
general  elections  of  State  officers,  should  apply  to  the  elec 
tion  of  delegates  to  the  Convention,  one  of  which  regulations 
was,  that  all  ballots  were  to  be  cast  in  sealed  envelopes,  and, 
if  tendered  without  them,  were  to  be  neither  received  not 
counted. 

§  401.  Under  this  Act,  a  vote  of  the  people  was  taken  on  the 
second  Monday  of  November,  1852,  Yes  or  No,  on  the  following 
question  prescribed  therein  :  —  "Is  it  expedient  that  delegates 
should  be  chosen  to  meet  in  Convention  for  the  purpose  of  re 
vising  or  altering  the  Constitution  of  government  of  this  Com 
monwealth  ? "  The  result  of  the  election  was  a  majority  of 
about  seven  thousand  in  favor  of  a  Convention.  On  the  first 
day  of  March,  1853,  a  few  days  before  the  delegates  to  the  Con 
vention  were  to  be  elected,  in  pursuance  of  the  foregoing  Act, 
the  legislature  of  Massachusetts,  then  in  session,  passed  an  Act, 
leaving  it  optional  with  the  voters  at  all  elections  held  in  the 
State,  to  use  the  sealed  or  open  ballots,  as  they  might  choose. 
It  was  not  disputed,  that  the  intention  of  the  legislature  was, 


CAN   THE  LEGISLATURE  BIND   THE   CONVENTION  ?  871 

that  this  rule  should  govern  the  election  of  delegates  to  the  Con 
vention.  When,  therefore,  Mr.  Butler  moved,  as  above  stated, 
that  the  town  of  Berlin  be  requested  to  elect  a  delegate  "  in  the 
manner  prescribed  by  the  second  section  of  the  Act  calling  the 
Convention,  adopted  by  the  people  on  the  second  Monday  in 
November,  A.  D.  1852,"  it  was  his  intention  to  insinuate  that  the 
Act  of  March  1,  1853,  modifying  that  of  May  7,  1852,  was  for 
that  purpose  inoperative  and  void,  and  to  recommend  that  it  be 
disregarded  by  the  electors  in  the  Berlin  election,  though  its  va 
lidity  as  to  all  other  elections  was  not  denied.  This  raised  the 
question  as  to  the  power  of  the  legislature  to  modify  or  repeal 
the  Convention  Act,  after  it  had  been  adopted  by  the  people  ; 
in  other  words,  the  question,  whence  does  an  Act  passed  with 
the  formalities  indicated,  derive  its  efficacy  ?  Is  it  from  the 
legislature,  or  is  it  from  the  people  acting  in  their  primary  ca 
pacity  ?  —  a  question,  evidently,  of  great  importance  ;  for,  if  the 
validity  of  such  an  Act  comes  alone  from  the  legislature,  that 
body  might  repeal  it  at  its  pleasure;  whilst,  if  it  be  derived 
from  the  people,  the  people  alone  would  have  power  to  alter 
or  annul  it. 

§  402.  By  Mr.  Butler,  Mr.  Hallett,  and  others,  who  favored  the 
restriction  of  the  voters  of  Berlin  to  the  mode  of  yoting  prescribed 
by  the  Act  of  1852,  the  opinion  of  the  New  York  judges  above 
commented  on,  was  cited  as  a  decisive  authority  for  that  restric 
tion, —  the  ground  being  taken  by  them,  for  the  reasons  stated 
in  the  opinion,  that  the  legislature  was  incompetent,  by  its  Act 
of  March  1,  1853,  to  change  the  provisions  of  the  previous  Act 
passed  upon  by  the  people.  They  contended,  that  when  the 
people  adopted  the  Convention  Act  in  November,  1852,  they 
adopted  the  whole  law,  and  not  simply  answered  the  question, 
whether  it  was  expedient  that  delegates  should  be  elected  to  a 
Convention  to  revise  the  Constitution ;  that  consequently  every 
provision  of  that  Act  was  adopted  by  them  and  in  force,  and 
that  those  provisions  severally  derived  their  efficacy  from  the 
same  source,  the  people,  through  the  vote  taken  upon  them  ;  that 
the  same  conclusion  would  follow  from  a  view  of  the  powers  of 
the  legislature ;  for  that,  by  the  Constitution  of  the  State  — 
Article  Nine  of  the  Amendments  of  1820  —  a  mode  had  been 
provided,  in  which,  by  the  recommendation  of  the  legislature, 
followed  by  a  vote  of  the  people,  "  any  specific  and  particular 


372  CAN   THE   LEGISLATURE   BIND   THE  CONVENTION? 

amendment  to  the  Constitution  "  might  be  made,  and  that,  be 
side  that,  the  Constitution  contained  no  grant  of  power  to  the 
legislature  to  meddle  with  the  Constitution,  much  less  to  con 
vene  any  other  body  with  authority  to  do  it ;  that,  accordingly, 
when  the  legislature  submitted  to  the  people  the  Act  of  May  7, 
1852,  it  submitted  it  not  as  a  law,  since  it  had  been  drawn  up 
outside  the  proper  province  of  that  body,  but  as  a  recommenda 
tion  merely,  to  be  rendered  effectual  and  valid  as  a  law  only  by 
the  fiat  of  the  people  ;  that,  consequently,  the  legislature,  having 
had  no  authority  to  pass,  were  equally  incompetent  to  repeal  or 
modify  the  law,  when  put  in  force  by  the  popular  vote. 

§  403.  On  the  other  hand,  it  was  contended  by  Mr.  Choate, 
and  Judges  Parker  and  Morton,  that  the  order  respecting  the 
mode  of  voting  to  fill  the  vacancy  from  Berlin,  could  be  defended 
only  on  one  of  these  two  grounds :  either,  first,  that  the  Act  of 
March  1,  1853,  was  wholly  void,  so  far  as  related  to  the  mode 
of  voting  for  delegates  to  the  Convention,  because  the  legisla 
ture  had  no  constitutional  power  to  enact  it ;  or,  secondly,  that 
although  it  was  admitted  to  be  a  valid  Act,  and  one  which  could 
be  enforced  in  a  court  of  justice,  the  Convention,  by  some  tran 
scendent  power,  might,  for  its  own  action,  at  least,  annul  it ;  that, 
as  to  the  first  hypothesis,  it  was  perfectly  clear,  that  a  legislature 
possessed,  at  any  moment,  exactly  the  powers  which  the  then 
existing  Constitution  gave  it,  or  allowed  to  it,  neither  less  nor 
more,  —  its  power  over  subjects  of  public  concernment  remain 
ing  the  same,  so  long  as  the  Constitution  remained  the  same ; 
that,  assuming  that  the  legislature,  which,  by  the  Act  of  May  7, 
1852,  ordained,  that  the  sealed  envelope  should  be  used  in  voting 
for  delegates  to  the  Convention,  had  power  to  make  such  a  pro 
vision —  which  nobody  had  yet  called  in  question  —  then  the 
legislature  which  sat  in  March,  1853,  had  power  to  modify  that 
provision,  if  the  Constitution  which  existed  in  May,  1852,  existed 
without  change  in  March,  1853  ;  in  other  words,  if  one  legislature 
could  constitutionally  prescribe  the  use  of  one  kind  of  ballot  for 
a  future  election,  a  subsequent  legislature,  at  any  time  before 
such  election,  might  prescribe  the  use  of  a  different  kind  of  bal 
lot,  if  the  whole  and  every  part  of  the  Constitution  continued 
all  the  while  unchanged ;  that  the  power  of  a  legislature  to  pass 
such  a  law  was  derived  from  that  provision  of  the  Constitution 
which  empowered  the  general  court  to  pass  all  manner  of  laws 


CAN   THE   LEGISLATURE   BIND    THE   CONVENTION?  373 

deemed  by  it  to  be  "  good  and  wholesome  ;  "  that  the  moment 
a  Convention  is  authoritatively  called,  whether,  under  the  Mas 
sachusetts  Constitution,  the  legislature  could  call  one  or  not, 
then  —  in  the  absence,  at  least,  of  a  mode  of  voting  prescribed 
by  the  sovereign  power  —  the  power  of  the  legislature  to  make 
good  and  wholesome  regulations  touching  times  and  places  and 
modes  of  voting,  the  place  of  the  sitting  of  the  Convention,  and 
the  like,  attached  and  was  quickened  into  activity,  and  con 
tinued  perfect,  at  least  till  the  elections  were  consummated  ; 
that  the  alleged  power  of  the  people  to  enact  a  law  about  sealed 
envelopes  or  any  thing  else,  does  not  exist,  in  the  light  either  of 
the  Constitution  or  of  historical  facts;1  that,  laying  aside  the 
former,  the  fact  was,  that  the  legislature  caused  to  be  presented 
to  the  people,  according  to  the  forms  of  law,  the  question, 
whether  they  deemed  it  expedient  that  a  Convention  should  be 
called  to  consider  of  revising  the  Constitution  ;  that  the  people 
answered  Yes,  and  there  they  rested  ;  that  they  never  passed 
upon  the  sealed  envelope,  or  any  other  detail  of  the  law  what 
ever  ;  that  the  second  hypothesis  referred  to,  of  some  transcend 
ent  power  in  the  Convention,  by  virtue  of  which  it  was  enabled, 
although  the  law  of  March  1,  1853,  was  valid,  to  annul  it,  was 
equally  unfounded  ;  that  if  the  power  existed,  so  far  as  the  Con 
vention's  own  action  was  concerned,  disobedience  to  it  by  the 
selectmen  of  Berlin,  under  the  recommendation  of  the  Conven 
tion,  would  not  for  that  reason  be  lawful  or  go  unpunished  ;  that 
the  power,  however,  was  not  admitted,  but  tested,  as  it  must 
be,  by  its  consequences  and  results,  it  was  extravagant  and  ab 
surd  ;  that  its  exercise  was  without  precedent  in  the  history  of 
American  constitutional  liberty  ;  that  no  Convention,  called 
together  under  a  statute  of  the  existing  government  to  revise 
a  Constitution  —  and  all  American  Conventions,  or  all,  with 
scarcely  an  exception,  had  been  so  called  —  had  ever  yet  assumed 
to  nullify  the  law  of  election  prescribed  by  the  authority  which 

l  "Reference  is  here  made  evidently  to  ordinary  laws.  Of  the  power  of  the 
people  to  enact  fundamental  laws  there  is  not  only  no  doubt,  but  it  is  clear  that 
no  other  body  has  power  to  enact  them,  except  by  express  warrant  for  the  par 
ticular  occasion.  For  an  exposition  of  the  general  principle  stated  above,  that 
the  people  have  not  the  power  of  ordinary  legislation,  under  our  Constitutions, 
and  cannot  be  invested  with  it  by  the  legislature,  see  the  cases  cited  below, 
§418,  note. 


374  CAN   THE   LEGISLATURE   BIND   THE   CONVENTION? 

called  it  together ;  that,  finally,  the  people,  by  the  vote  ratifying 
the  Act  of  May  7,  1852,  willed  two  things :  first,  that  there 
should  be  a  Convention ;  second,  that  it  should  be  called  by 
the  legislature,  sitting  as  a  legislature,  as  part  of  the  established 
government ;  and  that  the  elections  of  its  members  should  be 
conducted  exactly  as  that  legislature  should  prescribe  in  the  ex 
ercise  of  its  ordinary  unfettered  discretion  —  conclusions  that 
flow  directly  from  the  fact  that  the  people  had  responded  favor 
ably  to  the  proposal  of  a  Convention ;  they  rested  there,  thus 
leaving  it,  by  irresistible  implication,  to  the  legislature  to  carry 
out  their  will  in  its  own  way,  and  that  then  two  successive  leg 
islatures  assumed  to  make  the  needful  regulations  for  electing 
the  Convention  accordingly,  and  the  people  assembled,  pursuant 
to  custom,  and  under  those  regulations  cast  their  votes  and 
retired.1 

§  404.  To  these  arguments  I  shall  add  one  or  two  observa 
tions,  calculated,  as  I  think,  to  place  the  subject  under  consider 
ation  in  a  still  clearer  light.  The  principal  point  made  by  the 
judges  of  the  New  York  Supreme  Court,  before  referred  to, 
and  by  the  advocates  of  the  sealed  envelope  in  Massachusetts, 
citing  the  decision  of  those  judges  as  their  main  authority,  was, 
that  the  Acts  passed  by  the  legislatures  of  those  States  respec 
tively,  and  adopted  by  the  people,  derived  their  sole  efficacy 
from  the  popular  vote,  and  were  therefore  incapable  of  a  subse 
quent  repeal  or  modification  by  the  same  or  another  legislature. 
Whether  this  was  so  or  not  depends  mainly  upon  the  terms  of 
those  Acts,  ascertaining  the  extent  to  which  the  people  were  re 
quired  to  pass  upon  them.  Those  Acts  consisted  of  two  parts  : 
first,  of  one  or  more  sections  submitting  to  the  people  a  single 
question,  Whether  or  not  they  deemed  it  expedient  to  call  a 
Convention  and,  secondly,  of  sections  prescribing  the  time, 
mode,  and  conditions  of  the  election  at  which  the  question  was 
to  be  answered ;  and,  in  case  of  an  affirmative  answer,  provid 
ing  for  the  election  of  the  delegates,  and  the  assembling,  organi- 

1  See  speeches  of  Messrs.  Choate,  Parker,  Morton,  and  others,  in  Deb.  Mass- 
Conv.  1853,  Vol.  I.  pp.  73,  83,  116,  117,  144.  In  this  debate  Judge  Parker 
contended,  that  not  only  could  a  legislature  modify  the  Act  calling  a  Conven 
tion,  under  the  circumstances  detailed  in  the  text,  but  that  it  could  wholly 
repeal  the  Act,  even  after  the  Convention  had  commenced  its  session,  thus  put 
ting  an  end  to  its  existence.  Id.  p.  155. 


CAN   THE  LEGISLATURE  BIND   THE   CONVENTION?  375 

zation,  and  conduct  of  the  Convention.  The  same  is  true  of 
all  the  Acts  calling  Conventions  which  have  come  to  my  knowl 
edge,  except  the  few  which  contained  no  provision  for  a  prelim 
inary  vote  of  the  people  on  the  question  of  Convention  or  no 
Convention.  Thus  the  terms  of  the  Massachusetts  Act  of  May 
7,  1852,  are  as  follows :  — 

The  first  section  is,  in  substance,  that  "  the  legal  voters  of  the 
State,  at  the  November  election,  1852,  shall  give  in  their  votes 
by  ballot  on  this  question,  *  Is  it  expedient  that  delegates  should 
be  chosen  to  meet  in  Convention  for  the  purpose  of  revising  or 
altering  the  Constitution  of  government  of  this  Common 
wealth  ?  '  The  last  clause  contains  absolutely  every  thing 
that  was  submitted  to  the  people.  The  Act  then  proceeds  as 
follows  :  The  Governor  and  Council  shall  count  the  votes,  and 
on  the  first  Wednesday  in  January,  1853,  shall  make  known  the 
result ;  and  if  a  majority  of  the  votes  are  in  favor  of  a  Conven 
tion,  it  shall  be  taken  to  be  the  will  of  the  people  that  a  Conven 
tion  should  meet  accordingly  ;  and  the  Governor  shall  call  upon 
the  people  to  elect  delegates  to  meet  in  Convention,  &c.  The 
second,  third,  fourth,  and  fifth  sections  are  in  the  same  impera 
tive  terms:  "  the  inhabitants  shall  elect  one  or  more  delegates'* ; 
"  every  person  entitled  to  vote  for  representatives,  &c.,  shall  have 
a  right  to  vote;"  "the  same  officers  shall  preside  at  such  elec 
tions"  &c. ;  the  votes  for  said  delegates  "  shall  be  received,  sorted, 
and  counted,  &c.,  in  the  same  manner  as  is  now  provided,"  &c ; 
"  all  laivs  now  in  force  shall  apply  and  be  in  full  force  ;  "  "  the 
persons  so  elected  shall  meet  in  Convention,"  at  a  time  and  place 
specified ;  "  they  shall  be  judges  of  the  returns  and  elections  of 
their  own  members ;  they  shall  proceed,  as  soon  as  may  be,  to 
organize  themselves  in  Convention  ; "  "  and  such  alterations  or 
amendments,  when  made  and  adopted  by  the  Convention,  shall 
be  submitted  to  the  people,"  &c. ;  "  and,  if  ratified  by  the  people, 
in  the  manner  directed  by  said  Convention,  the  Constitution 
shall  be  deemed  and  taken  to  be  altered  and  amended  accord 
ingly  ;  "  "  and  if  not  so  ratified,  the  present  Constitution  shall  be 
and  remain  the  Constitution  of  government  of  this  Common 
wealth." 

The  New  York  Act  was  substantially  identical  with  the  one 
just  described,  differing  from  it  only  in  the  unimportant  particu 
lar,  that,  at  the  preliminary  election,  the  inspectors  of  election 


376  CAN   THE   LEGISLATURE   BIND   THE   CONVENTION  ? 

were  required  to  prepare  ballots,  on  which  should  be  written, 
"  Convention,"  and  "  No  Convention,"  and  all  citizens  were 
"  allowed  "  to  cast  one  or  the  other  of  them,  as  they  should 
deem  best.  Should  the  result  of  the  election  be  a  vote  in  favor 
of  a  Convention,  the  remaining  twelve  sections  of  the  Act,  con 
sisting  of  imperative  provisions,  similar  to  those  above  quoted, 
were  to  take  effect. 

§  405.  Now,  although  it  is  true  that,  in  these  Acts,  the  imper 
ative  provisions  were  most  of  them  pivoted  upon  the  contin 
gency  of  an  affirmative  answer  to  the  question  of  "  Convention 
or  no  Convention,"  and  that,  in  case  a  negative  answer  should 
be  given,  they  would  lose  their  entire  force  as  laws,  yet  it  is  also 
true  that,  so  far  as  those  Acts  were  ever  to  have  force  as  laws, 
they  were  to  derive  it  from  the  legislature.  They  were  couched 
in  the  language  of  laws,  of  commands,  addressed  by  a  superior, 
able  to  enforce  them,  to  inferiors  ;  they  differed  from  other  laws 
merely  in  being  made  conditional,  as  to  their  taking  effect,  upon 
the  happening  of  a  future  event,  the  affirmative  vote  of  the 
people  upon  a  single  question.  If  the  event  did  not  happen,  the 
laws  would  remain  inoperative  ;  if  it  did  happen,  they  would  at 
once  go  into  effect. 

Now,  what  degree  of  efficacy  is  to  be  attributed  to  such  con 
ditional  Acts,  and  what  the  source  from  which  that  efficacy  is 
derived,  are  legal  questions,  upon  which,  fortunately,  there  is  no 
lack  of  authority.  Our  State  legislatures  have,  within  the  last 
twenty  years,  in  many  cases,  passed  Acts  relating  to  the  sale  of 
intoxicating  liquors,  to  schools,  railroads,  &c.,  and  required,  be 
fore  they  should  take  effect,  that  they  should  be  submitted  to  the 
people.  If  approved  by  the  people,  they  should  be  enforced,  and 
if  not,  they  should  not.  By  our  Constitutions,  the  power  of 
passing  laws  having  been  exclusively  committed  to  our  General 
Assemblies,  the  objection  has  been  raised,  in  these  cases,  that 
the  Acts  were  unconstitutional,  as  attempting  to  transfer  to  the 
people  the  right  to  make  laws.  The  courts,  however,  have,  in 
many  of  the  cases,  sustained  the  action  of  the  legislature,  on 
the  ground  that  the  laws  were  perfect  and  complete  as  such, 
when  passed  by  that  body,  but  were  made  contingent,  as  to 
their  taking  effect,  upon  the  happening  of  a  future  event  —  the 
approving  vote  of  the  people.1  When,  on  the  other  hand,  by 

l  Barto  i'.  Himrod,  4  Seld.  R.  483  ;  with  which  compare  The  People  v.  Collins, 
3  Mich.  K  343. 


CAN    THE   LEGISLATURE   BIND   THE   CONVENTION?  377 

the  terms  of  the  Acts,  the  fiat  which  is  to  make  them  laws  is  to 
be  spoken  by  the  people,  they  have  been  holden  to  be  unconsti 
tutional. 

The  analogy  between  these  cases  and  those  of  the  Conven 
tion  Acts  of  New  York  and  Massachusetts,  is,  in  my  judgment, 
complete.  These  Acts  were  in  terms  imperative,  per  verba  de 
presenli,  and  but  for  the  contingency  provided  for  of  a  popular 
vote,  they  would  have  gone  into  immediate  effect.  With  that 
provision,  however,  they  stood  thus :  If  the  people  should,  at 
the  election  provided  for,  vote  that  a  Convention  was  inexpe 
dient,  none  would  be  held;  and  of  course  those  provisions  re 
quiring  an  election  of  delegates  to  form  one,  would  not  go  into 
effect ;  otherwise  they  would. 

§  406.  Again  :  When  a  Convention  Act  is  submitted  to  the 
people,  it  is  clear  that  it  is  the  mere  question  of  the  expediency 
of  a  Convention  that  is  passed  upon.  The  people  have  no 
power  of  deliberation,  or  of  suggesting  amendments,  but  merely 
of  pronouncing  upon  single  propositions,  yea  or  nay.  An  affirm 
ative  vote  declares  it  to  be  expedient,  a  negative  to  be  inexpe 
dient,  to  call  a  Convention  —  a  declaration  which  has  neither 
the  form  nor  the  effect  of  a  law.  The  language  of  a  law  is 
"fiat "  —  let  it  be  done ;  that  of  such  an  Act  of  the  people  is 
"  videtur  "  —  it  seems  good,  —  "  desiderandum  est  "  —  it  is  de 
sirable —  a  mere  expression  of  opinion,  not  the  uttering  of  a 
command.  The  contrary,  however,  is  true  of  those  parts  of 
such  Acts  which  relate  to  the  details  necessary  to  give  practical 
effect  to  a  Convention  Act.  There  is  no  expression  of  opinion, 
but  the  uttering  of  positive  commands  to  the  officers  of  the 
government,  voters,  &c.,  contingent,  as  to  their  taking  effect, 
upon  the  opinion  expressed  by  the  electoral  body. 

§  407.  That  the  construction  contended  for  is  the  proper  one 
to  give  to  such  Acts,  is  inferable  from  the  adjudication  of  the 
Supreme  Court  of  Illinois  upon  cases  that  have  arisen  in  that 
State.  By  the  existing  Constitution  of  the  State,  that  of  1847, 
no  Act  of  the  General  Assembly  authorizing  corporations  or 
associations  with  banking  powers  could  go  into  effect  or  in  any 
manner  be  in  force,  unless  the  same  should  be  submitted  to  the 
people  at  the  general  election  succeeding  the  passage  of  the 
same,  and  be  approved  by  a  majority  of  all  the  votes  cast  at 
such  election  for  and  against  such  law.1 

1  1U.  Const,  of  1847,  Art.  X.  §  60. 


378  CAN   THE   LEGISLATURE   BIND   THE   CONVENTION? 

In  1851,  a  General  Banking  Law  was  passed  by  the  General 
Assembly  and  submitted  to  the  people,  agreeably  to  the  consti 
tutional  provision,  and  ratified  by  them.  To  that  part  of  this 
law  prescribing  the  mode  in  which  taxes  should  be  assessed 
against  the  corporations  thereby  created,  and  the  amount  of 
their  taxable  property  be  ascertained,  an  amendment  was 
made  by  the  General  Assembly  in  1857,  but  the  amendment  was 
not  submitted  to  the  people.  Against  the  validity  of  this 
amendment  the  objection  was  raised  by  one  of  the  banks 
affected  by  it,  that  it  was  void,  because  it  had  not  been  ratified 
by  the  people  as  required  by  the  Constitution  ;  that  the  General 
Assembly  had  no  power  to  repeal  or  modify  any  clause  of  the 
General  Banking  Law  which  had  been  submitted  to  and 
adopted  by  the  people,  without  the  same  solemnities  that  at 
tended  its  original  passage.  In  substance,  it  will  be  observed, 
this  objection  was  precisely  the  same  as  that  taken  to  the  New 
York  and  Massachusetts  Acts  referred  to,  namely,  that,  in  ratify 
ing  the  General  Banking  Law,  the  people  had  ratified  every 
clause  of  it  alike,  and  so  placed  all  parts  of  it  equally  beyond 
the  reach  of  a  legislative  repeal.  The  case  coming  before  the 
Supreme  Court,  it  was  held  by  that  body,  that  the  vote  of  the 
people  did  not  render  the  clause  in  question  irrepealable  by  the 
General  Assembly.  The  Court,  speaking  of  the  effect  of  the 
vote  of  the  people,  say  :  — 

"  That  vote  gave  to  this  clause  no  additional  sanction.  The 
subject  of  taxation  and  the  revenue  are,  by  the  Constitution, 
placed  in  the  hands  of  the  legislature  alone.  Upon  this  subject 
they  have  complete  jurisdiction  to  legislate  independently  of  the 
popular  vote,  and  such  vote  in  approval  of  laws  which  might  take 
effect  without  it,  could  not  place  the  law  beyond  or  above  the  juris 
diction  of  the  General  Assembly."  1 

§  408.  In  this  case  the  clause  in  question  was  held  not  to 
have  been  made  irrepealable  by  the  popular  vote  upon  the  law 
of  which  it  formed  a  part,  because  it  related  to  a  subject-matter 
properly  cognizable  by  the  General  Assembly  under  its  general 
powers  granted  by  the  Constitution.  And  it  was  so  held,  al 
though  the  Court  expressly  admitted  that  the  clause  sought  to 

1  Bank  of  the  Republic  v.  County  of  Hamilton,  21  111.  11.  53  ;  afterwards  con 
firmed  by  the  same  Court  in  Reaper's  Bank  v.  Willard,  24  111.  R.  433. 


CAN   THE  LEGISLATURE   BIND  THE   CONVENTION?  379 

be  amended  had  been  submitted  to  and  voted  on  by  the  people 
of  the  State.     The  Court  say  :  - 

"  We  are  clearly  of  opinion  that  some  of  the  provisions  of 
this  law  which  was  submitted  to  the  people  are  subject  to  legis 
lative  interference  and  control,  and  among  them  is  the  one  in 
question.  We  may  safely  say  that  the  Constitution  did  not  re 
quire  that  the  mode  of  assessing  the  property  of  the  bank  for 
the  purposes  of  taxation  should  be  submitted  to  the  people,  and 
its  submission  to  them  was  a  work,  of  supererogation" 

Although,  then,  an  Act  in  all  its  parts  be  submitted  to  the 
people,  and  they  pass  upon  it  throughout,  it  is  not  placed  be 
yond  legislative  repeal,  as  to  such  parts  of  it  as  are  within  the 
general  cognizance  of  the  General  Assembly,  when  there  is 
nothing  in  the  Constitution  requiring  the  subject-matters  com 
prised  within  those  parts  to  be  submitted  to  a  vote  of  the 
people. 

It  is  clear,  then,  from  this  decision,  that  had  the  New  York 
and  Massachusetts  Convention  Acts  been  submitted  to  and 
voted  on  by  the  people,  in  toto,  section  by  section,  they  would 
still  have  been,  in  the  main,  subject  to  legislative  repeal  or  modi 
fication.  But,  as  we  have  seen,  it  is  doubtful  whether  those 
Acts  ever  were  submitted  as  a  whole.  It  is  pretty  certain  that 
in  neither  case  was  any  part  of  them  submitted  except  that  re 
lating  to  the  expediency  of  the  call  of  a  Convention. 

And  with  reference  to  the  Illinois  case,  I  may  remark,  that  the 
decision  might  have  been  placed,  in  my  judgment,  upon  broader 
and  more  solid  ground,  by  holding  simply  that  the  Constitution 
of  the  State  required  only  the  question  of  the  expediency  of  in 
corporating  banking  institutions  to  be  passed  upon  by  the  peo 
ple,  leaving  all  questions  of  details  to  the  General  Assembly,  to 
which,  as  involving  the  exercise  merely  of  a  legislative  discre 
tion,  they  belonged. 

§  409.  The  result  of  the  discussion  in  the  Massachusetts  Con 
vention,  it  should  perhaps  be  stated,  was  that  that  body  adopted 
by  a  large  majority  the  notice  to  the  town  of  Berlin  offered  by 
Mr.  Butler,  and  the  town  accordingly  elected  a  delegate  to  fill 
the  vacancy,  in  the  manner  pointed  out  in  "  the  Act  calling  the 
Convention,  adopted  by  the  people  on  the  second  Monday  of 
November,  1852."  The  force  of  this  action  of  the  Convention, 
however,  as  a  precedent,  is  much  impaired  by  the  fact  that 


380  CAN   THE   LEGISLATURE   BIND   THE   CONVENTION? 

all  the  amendments  proposed   by  it  were   repudiated    by  the 
people. 

§  410.  The  principles  settled  by  the  preceding  discussion 
make  it  easy  to  answer  another  question  relating  to  the  power 
of  a  legislature  over  a  Convention,  namely,  Can  the  former  bind 
the  latter  to  submit  the  fruit  of  its  labors  to  a  vote  of  the  peo 
ple  ?  If  it  be  granted  that  a  legislature  can  bind  a  Convention 
in  any  particular,  it  is  plain  that  the  power  ought  to  exist  more 
especially  in  such  matters  as  relate  to  its  modes  of  organization 
and  proceeding,  —  that  is,  to  questions  of  method  ;  and  that  the 
region  of  greatest  doubt  would  commence  when  questions  be 
gan  to  arise  touching  what  the  Convention  should  or  should  not 
consider  or  recommend.  Among  questions  of  the  former  kind, 
relating  to  its  method  of  procedure,  that  which  is  by  far  of  most 
vital  consequence  is,  What  disposition  shall  be  made  by  the 
Convention  of  the  work  of  its  hands  ? 

Two  courses  only  are  possible : 

First.  The  Convention  might  finish  its  deliberations,  and, 
without  further  ado,  publish  its  work  as  the  supreme  law  of 
the  land ;  or, 

Secondly.  It  might  regard  its  action  as  only  inchoate  or  pro 
visional,  and  accordingly  submit  the  fruit  of  it  to  the  people,  its 
master,  for  approval  or  disapproval. 

§  411.  Of  the  two  courses  indicated,  the  first  is  wholly  inad 
missible  in  any  case  whatever,  that  alone  excepted  in  which  it 
should  be  adopted  under  the  express  authority  of  law.  The 
reason  is,  that  it  would  make  of  the  Convention  a  simple  des 
pot  ;  and  if  despotic  authority  is  desired,  it  would  be  far  better 
to  have  the  concentrated  vigor  of  an  absolute  monarch,  whose 
rule  is  commonly  "tempered,"  if  no  otherwise,  " by  assassina 
tion,"  into  a  sort  of  practical  responsibility  to  the  people,  or  the 
temperate  administration  of  a  legislature  of  two  houses,  in 
which  passion  and  ambition  would,  by  a  system  of  checks,  be 
rendered  least  dangerous  to  the  Commonwealth.  The  history 
of  liberty  has  shown,  that  the  most  direct  road  to  the  ruin  of  a 
free  state  is  to  make  a  single  popular  assembly  the  dispenser  of 
its  ordinary  statute  law.  But  to  intrust  such  a  body,  without 
check,  with  the  enactment  of  its  fundamental  law,  would  be  but 
to  discount  the  national  life,  —  to  antedate  that  final  overthrow 
which  history  shows  to  be  in  store  for  all  nations.1 

1  See  Parker  v.  The  Commonwealth,  6  Barr.  509. 


CAN   THE  LEGISLATURE   BIND   THE   CONVENTION?  881 

§  412.  The  second  course  is  for  the  Convention  to  recognize 
the  limitation  upon  its  powers,  imposed,  if  not  in  express  terms 
by  the  Act  calling  it,  then  by  the  principles  of  constitutional  gov 
ernment,  as  well  as  by  the  customary  law  regulating  the  action 
of  such  bodies  in  America,  and  to  submit  the  propositions  it 
may  mature  to  a  vote  of  the  people.  By  this  course  only  can 
there  be  assured  to  the  sovereign  or  nation  at  large  that  firm 
hold  upon  its  liberties,  that  practical  dominion  over  all  function 
aries  empowered  to  act  in  its  stead,  which  constitutes  a  govern 
ment  of  law  as  distinguished  from  a  revolutionary  tribunal,  in 
which  no  law  is  obeyed  but  the  passions  or  interests  of  those 
who  direct  it. 

§  413.  These  two  courses  being  the  only  possible  ones,  it 
needs  no  argument  to  show,  not  only  that  the  Convention  ought 
to  follow  that  which  is  compatible  with  the  continued  healthy 
life  of  the  state,  but  that  there  ought  to  be  provided  some  mode 
in  which  it  may  be  compelled  to  follow  it  —  some  power  by 
which,  the  possibility  of  its  refusal  to  do  so  being  anticipated, 
provision  may  be  made  against  a  career  of  usurpation  —  by 
which  treasonable  conduct  may  be  averted  by  denouncing 
against  it  summary  punishment.  Undoubtedly,  for  this  pur 
pose,  the  legislature  is  the  department  having  power  to  make 
the  requisite  provisions.  To  deny  to  that  body  the  right  to 
hedge  about  the  institutions  in  which  our  liberties  are  embodied, 
would  be  to  make  it  adequate  to  the  transitory  and  more  trivial 
subjects  of  legislation,  but  inadequate  to  those  which,  while 
they  are  no  less  strictly  matters  of  legislative  cognizance,  far 
transcend  in  importance  all  others  that  can  arise. 

§  414.  As  a  practical  question,  the  right  of  a  legislature  to 
require  a  Convention  to  submit  its  recommendations  to  a  vote 
of  the  people  has  been  several  times  discussed,  and  intimations 
have  been  thrown  out  that  the  latter  body  might  disregard  the 
requirement,  but  no  attempt  has  ever  been  made,  so  far  as  I  am 
aware,  to  carry  that  supposed  right  into  effect.  In  the  Illinois 
Conventions  of  1847  and  1862,  it  was  contended  by  a  few  mem 
bers  that  the  Convention  was,  for  the  purposes  for  which  it  was 
assembled,  sovereign,  and  that,  although  an  act  of  legislation 
was  doubtless  needful  to  bring  the  body  into  existence,  yet, 
when  once  born,  its  sovereignty  attached,  and  it  could  disre 
gard  all  the  provisions  of  the  Act  at  its  pleasure.  Hence  it  was 


382  CAN  THE  LEGISLATURE  BIND   THE   CONVENTION? 

concluded,  that  those  bodies  might  or  might  not  submit  the 
result  of  their  labors  to  the  people,  notwithstanding  the  positive 
injunctions  of  the  legislature,  as  their  own  views  of  expediency 
should  dictate. 

In  reply  to  these  arguments,  I  do  not  deem  it  necessary  to 
adduce  any  considerations  other  than  those  so  often  urged  in 
preceding  pages,  to  refute  their  fundamental  principle  —  that  of 
conventional  sovereignty.  Those  arguments  seem  to  have  had 
little  effect  upon  either  of  the  bodies  to  which  they  were  ad 
dressed,  and  possibly  were  propounded  merely  to  pave  the  way 
for  certain  aberrations  in  the  mode  of  submission  to  the  people, 
which  will  be  hereafter  discussed  ;  for  the  Constitutions  framed 
by  those  Conventions  were  each  submitted  to  the  people  in 
substantial  compliance  with  the  Acts  under  which  they  assem 
bled,  except  a  few  sections  which,  for  special  reasons,  and 
contrary  to  the  spirit,  if  not  to  the  letter,  of  those  Acts,  were 
withheld  from  submission,  or  submitted  in  an  unusual  and  ex 
ceptionable  manner. 

§  415.  3.  Connected  with  the  subject  of  legislatures  by  their 
Acts  binding  Conventions,  as  well  as  that  of  submitting  Consti 
tutions  to  the  people  just  referred  to,  is  a  question  that  arose  in 
1857-8,  in  Kansas,  during  the  struggle  that  finally  resulted  in 
the  admission  of  that  State  into  the  Union,  namely,  whether,  if 
a  Convention  has  taken  upon  itself  to  submit  a  Constitution 
framed  by  it  to  the  people,  on  a  particular  day  and  in  a  particu 
lar  manner,  the  legislature  of  the  State  may  alter  the  time  and 
mode  of  such  submission  ?  This  question  evidently  involves 
directly  that  of  legislative  supremacy  as  between  legislatures 
and  Conventions,  and,  therefore,  although  it  might  appropriately 
be  discussed  in  other  relations  than  the  present,  I  deem  it  proper 
to  consider  it  in  this  connection.  The  facts  under  which  the 
question  arose  are  as  follows  :  — 

In  1855,  the  first  territorial  legislature  of  Kansas  passed  an 
Act  to  take  the  sense  of  the  people  at  the  election  in  October, 
1856,  on  the  call  of  a  Convention  to  form  a  State  Constitution. 
Accordingly,  an  election  was  held,  at  which  about  2500  votes, 
cast  mainly  by  pro-slavery  voters,  were  polled,  the  Free- State 
men  not  voting.  At  this  election  a  new  legislature  was  elected, 
all  pro-slavery,  which  met  in  January,  1857,  and  in  conformity 
with  the  vote  of  the  2500  at  the  preceding  October  election, 


CAN   THE  LEGISLATURE  BIND   THE   CONVENTION?  383 

passed  an  Act  providing  for  an  election  of  delegates  on  the 
15th  of  June,  to  meet  in  Convention  in  September  following. 
The  delegates  elected  assembled  in  Convention  at  Lecompton, 
September  5th,  but  soon  adjourned  over  to  October,  to  await  the 
result  of  the  general  election  to  be  held  on  the  first  Monday  of 
that  month.  At  this  election  both  parties  nominated  candidates, 
and  after  rejecting  fraudulent  votes,  the  Free-State  party  carried 
the  Territorial  legislature  and  the  delegate  to  Congress.  The 
Convention  reassembled  in  October,  after  this  election,  formed 
the  Constitution  afterwards  so  famous  as  the  Lecompton  Con 
stitution,  and  submitted  only  a  portion  of  it  to  the  people  — 
that  portion  relating  to  slavery  —  and  that  in  a  form  and  under 
a  test  oath  which  would  prevent  the  Free- State  people  from 
voting.  December  17th  following,  the  legislature,  containing  a 
Free- State  majority,  assembled  and  passed  an  Act  to  submit 
the  Lecompton  Constitution  fairly  to  a  vote  of  the  people,  on 
the  4th  of  January,  1858.  On  the  21st  of  December,  1857,  the 
vote  was  taken  in  the  manner  prescribed  by  the  Convention,  and 
resulted  as  follows :  — 

For  the  Constitution  with  slavery 6266 

For  the  Constitution  without  slavery         .         .         .         .         567    ' 

January  4,  1858,  in  accordance  with  the  Act  of  the  Territorial 
legislature,  the  people  voted  as  follows  :  — 

For  the  Lecompton  Constitution  with  slavery  .         .         .         138 
For  the  Lecompton  Constitution  without  slavery      .         .  24 

Against  the  Lecompton  Constitution         ....    10,226 

§  416.  Here  the  discrepancy  being  so  enormous,  and  the  ap 
parent  results,  though  contradictory,  so  decisive,  the  question 
becomes  of  great  importance,  Which  of  the  two  elections  was 
authorized  by  law  and  which  was  not  ?  This  question  evidently 
depends,  as  a  legal  one,  on  the  power  of  a  legislature,  or  the 
successor  of  a  legislature,  by  which  a  Convention  has  been 
called,  to  alter  a  regulation  made  by  the  latter  in  relation  to  the 
time  and  manner  of  submitting  a  Constitution  to  the  people. 
And  this  again  depends  upon  the  question  whether  the  making 
of  regulations  touching  the  submission  of  Constitutions  to  the 
people  is  an  exercise  of  ordinary  or  of  fundamental  legislation. 
If  it  be  the  former,  it  belongs  exclusively  to  the  legislature, 


884  CAN   THE   LEGISLATURE   BIND   THE   CONVENTION? 

whether  that  body  claims  it  or  yields  it  to  the  Convention.  And, 
if  the  right  to  submit  belongs  exclusively  to  the  legislature,  any 
Act  of  a  Convention  having  for  its  purpose  such  submission 
would  be  wholly  invalid,  unless  ratified  by  such  legislature,  or 
by  the  acquiescence  of  the  people.  From  this  it  follows,  that  if 
the  legislature  were  to  dissent  from  the  dispositions  made  by  a 
Convention  and  to  make  new  ones,  the  latter  would  in  effect 
be  rather  original  Acts  than  alterations  of  Acts  previously 
passed ;  that  is,  in  them  alone  would  there  at  any  time  be  any 
validity  whatever.  As  a  matter  of  fact,  we  shall  see  hereafter, 
that,  by  thoughtless  legislation,  Conventions  have  been  some 
times  empowered  to  make  such  provisions  as  they  may  deem 
advisable  respecting  the  submission  of  the  fruit  of  their  labors 
to  the  people,  and  perhaps  no  great  evil  has  as  yet  practically 
resulted  from  so  doing.  But,  as  a  precedent,  in  my  view,  noth 
ing  could  be  more  dangerous.  To  demonstrate  this,  it  is  neces 
sary  only  to  advert  to  a  single  circumstance,  which  is,  that 
whenever  the  providing  for  submission  to  the  people  is  remitted 
to  a  Convention,  the  power  is  given  to  that  body  absolutely. 
There  is  no  such  thing  as  taking  the  sense  of  the  people  on  the 
propriety  of  any  provisions  the  Convention  may  make,  for  they 
are  to  take  effect  prior  to,  or  at  latest,  contemporaneously  with, 
the  popular  vote,  with  the  single  exception  of  such  as  relate 
to  the  returning  and  counting  of  the  votes.  The  result  is,  that 
a  body  whose  function  is,  and  can  safely  be,  at  most,  only  that  of 
a  committee,  is  vested  with  an  absolute  discretion  in  a  point 
of  infinite  importance  to  the  public  welfare.  This  would  be 
eminently  unsafe,  were  the  trust  confined  to  ordinary  legislation  ; 
but  it  is  not.  It  has  a  decisive  influence  upon  the  passing  or 
not  passing  of  the  fundamental  law,  and  may  even  determine 
its  character. 

§  417.  The  principal  reasons  why  such  legislation  as  is  neces 
sary  to  submit  to  the  people  the  fruits  of  the  deliberations  of  a 
Convention,  should  be  performed  by  the  legislature,  are,  first, 
that  that  legislation  is  not  fundamental  in  its  character ;  and, 
secondly,  that  a  legislature,  and  no  other  body,  is,  under  our 
Constitutions,  competent  to  perform  that  work,  and  that  the  leg 
islature  has  no  constitutional  authority  to  delegate  the  right  to 
perform  it  to  any  other  body. 

The  principles  upon  which  the  first  of  these  propositions  rests 


CAN   THE  LEGISLATURE   BIND   THE   CONVENTION?  385 

have  been  the  subject  of  extended  examination  in  a  former 
chapter,  in  which  was  considered  the  distinction  between  the 
two  kinds  of  legislation  specified.1  It  needs  therefore  only  to 
be  remarked  here,  that  in  an  Act  having  for  its  purpose  the  sub 
mission  of  fundamental  laws  to  the  people,  there  is  nothing 
whatever  of  a  fundamental  character.  It  is  a  simple  exercise 
of  ordinary  legislation  —  an  adapting  of  means  to  an  end  — 
depending  for  its  particular  character  upon  current  views  of  ex 
pediency.  Hence  it  is  worthy  of  note,  that  such  Acts,  even  when 
passed  in  the  shape  of  ordinances  by  Conventions,  are  generally 
not  accounted  parts  of  the  Constitution.  At  most,  they  are 
allowed  to  figure  in  the  Schedule,  which,  as  we  have  seen,  is  the 
repository  of  provisions  intended  to  facilitate  the  transition  from 
an  order  of  things  going  out  with  an  old,  to  that  coming  in  with 
a  new,  Constitution.  Hence,  such  Acts,  being  temporary  in 
purpose  and  effect,  are  not  really  proper  to  rank  as  constitutional 
provisions,  though  perhaps  they  may  be  as  binding  upon  the 
various  departments  of  the  government  as  if  they  had  been 
embodied  in  the  Constitution. 

§  418.  In  relation  to  the  second  proposition,  it  is  so  purely  a 
legal  one,  and  is  so  well  settled,  that  there  is  even  less  need  of 
dwelling  upon  it  at  length.  No  position  is  better  established  in 
American  law  than  that  ordinary  legislation  belongs  exclusively 
to  the  legislature  proper,  and  cannot  be  delegated  even  to  the 
people  or  electors,  who  are  in  one  sense  superior  to  both  legisla 
tures  and  Conventions.  Thus,  the  Supreme  Court  of  Delaware, 
in  a  case  where  the  question  arose  as  to  the  constitutionality  of 
an  Act  of  the  legislature  entitled,  "  An  Act  authorizing  the 
people  to  decide  by  ballot  whether  the  license  to  retail  intoxi 
cating  liquors  shall  be  permitted  among  them,"  upon  that  ques 
tion,  said :  — 

"  It  is  ....  clear  that  neither  the  legislative,  executive,  nor 
judicial  departments,  separately  nor  all  combined,  can  devolve 
on  the  people  the  exercise  of  any  part  of  the  sovereign  power 
with  which  each  is  invested.  The  assumption  of  a  power  to 

do  so  would  be  usurpation The  powers  of  government 

are  trusts  of  the  highest  importance ;  on  the  faithful  and  proper 
exercise  of  which  depend  the  welfare  and  happiness  of  society. 

1  See  ante,  §§  85-87. 

2  Stewart  v.  Crosby,  15  Texas  R.  546. 

25 


386  CAN    THE  LEGISLATURE   BIND   THE   CONVENTION? 

These  trusts  must  be  exercised  in  strict  conformity  with  the 
spirit  and  intention  of  the  Constitution,  by  those  with  whom 
they  are  deposited  ;  and  in  no  case  whatever  can  they  be  trans 
ferred  or  delegated  to  any  other  body  or  persons ;  not  even  to 
the  whole  people  of  the  State  ;  still  less  to  the  people  of  a 

county If  the  legislative  functions  can  be  transferred 

or  delegated  to  the  people,  so  can  the  executive  or  judicial 
power.  The  absurd  spectacle  of  a  governor  referring  it  to  a 
popular  vote,  whether  a  criminal,  convicted  of  a  capital  offence, 
should  be  pardoned  or  executed,  would  be  the  subject  of  uni 
versal  ridicule;  and  were  a  court  of  justice,  instead  of  deciding 
a  case  themselves,  to  direct  the  prothonotary  to  enter  judgment 
for  the  plaintiff  or  defendant,  according  to  the  popular  vote  of 
a. county,  the  community  would  be  disgusted  with  the  folly, 
injustice,  and  iniquity  of  the  proceeding.  All  will  admit  that, 
in  such  cases,  the  people  are  totally  incompetent  to  decide  cor 
rectly.  Equally  incompetent  are  they  to  exercise  with  discern 
ment  and  discretion  collectively,  or  by  means  of  the  ballot-box, 
the  power  of  legislation  ;  because,  under  such  circumstances, 
passion  and  prejudice  incapacitate  them  for  deliberation."  * 

If  weight  is  to  be  given  to  this  and  numerous  other  decisions 
of  our  courts,  according  with  it  in  principle,  it  is  clear  then  that 
the  function,  often  assumed  by  Conventions,  of  submitting  to 
the  people  the  results  of  their  deliberations  more  properly  be 
longs  to  the  legislature,  the  latter  being  the  only  body  which 
can  constitutionally  make  the  requisite  legislative  provisions. 

§  419.  (b).  In  the  preceding  sections  have  been  considered 
the  general  relations  of  legislatures  to  Conventions,  and  the 
power  of  the  former,  by  their  enactments,  to  bind  the  latter, 
concluding  with  a  discussion  of  some  questions  involving  an 
application  of  the  principles  which  determine  those  relations 
and  limit  that  power.  Another  and  not  less  important  aspect 
of  the  same  relations  remains  to  be  considered,  namely,  that  in 
which  the  Convention  is  regarded  as  the  active  body,  exercising 
powers,  or  assuming  functions ;  while  the  legislature,  to  which 

1  Rice  v.  Foster,  4  Harr.  (Del.)  R.  479.  See  also  the  following  cases,  in 
which  the  same  rule  is  maintained:  Bradley  v.  Baxter,  15  Barb.  R.  122  ;  Peo 
ple  v.  Collins,  3  Mich.  R.  343  ;  Case  of  the  Borough  of  West  Philadelphia,  5  W. 
&  S.  R.  281 ;  Barto  v.  Hiinrod,  4  Seld.  R.  483 ;  Maize  v.  The  State,  4  Porter's 
(Ind.)  R.  342  ;  Parker  v.  Commonwealth,  6  Barr's  R.  509. 


HAS   THE   CONTENTION   GENERAL    LEGISLATIVE   POWERS?      387 

that  action  is  conceived  to  be  relative,  is   passive,  or  out  of 
sight. 

Under  this  phase  of  the  subject  various  questions  arise,  but 
they  all  resolve  themselves  substantially  into  the  following, 
which  I  purpose,  therefore,  to  discuss  at  some  length,  namely  — 

1.  Is  a  Convention  possessed  of  legislative  powers  ? 

2.  Can  a  Convention  act  as  a  legislature  in  matters  by  the 
Federal   Constitution  required  to  be  transacted  by  the  legisla 
tures  of  the  several  States  ? 

3.  Can  a  Convention  fetter  a  discretion  confided  to  the  State 
legislatures  by  the  Federal  Constitution  ? 

§  420.  1.  We  have  seen  that,  in  the  United  States,  the  con 
stitutional  Convention  belongs  to  the  genus  legislature,  —  by 
which  is  meant  that  its  proper  function  is  to  elaborate,  to  a 
certain  extent,  to  be  determined  by  the  tenor  of  its  commission, 
the  fundamental  law,  much  as  the  legislature  enacts  the  ordi 
nary  municipal  law.  Of  these  two  species  of  law,  the  distinc 
tion  between  which  has  been  already  explained,  it  is  the  im 
portant  thing  to  note,  that  the  one  denominated  fundamental  is, 
generally  speaking,  the  work  only  of  a  Convention,  a  special 
and  extraordinary  assembly,  convening  at  no  regularly  recurring 
periods,  but  whenever  the  harvest  of  constitutional  reforms  has 
become  ripe ;  while,  on  the  other  hand,  the  ordinary  statute  law, 
whose  provisions  are  tentatory  and  transient,  is,  regularly  at 
least,  the  work  of  a  legislature,  —  a  body  meeting  periodically  at 
short  intervals  of  time.  It  is  thoroughly  settled  that,  under  our 
Constitutions,  State  and  Federal,  a  legislature  cannot  exercise 
the  functions  of  a  Convention, — cannot,  in  other  words,  take 
upon  itself  the  duty  of  framing,  amending,  or  suspending  the 
operation  of  the  fundamental  law.1  Being  the  supreme  law  of 
the  land,  all  departments  of  the  government  are  subject  to  its  con 
trol,  for  from  and  under  it  they  derive  both  their  commissions 
and  their  existence ;  and  to  permit  either  of  them  to  modify  it 
would  be  to  invert  the  relations  of  dependence  on  which  the 
safety  of  the  whole  system  depends.  This  has  never  been 
doubted  since  the  early  days  of  the  Republic.2  Does  an  anal- 

1  The  same  also  is  true  of  the  legislatures  of  all  constitutional  governments, 
excepting,  perhaps,  that  of  England.     Vattel,  Law  of  Nations,  Bk.  J.  ch.  3, 
§§  34,  35. 

2  It  is  true,  some  confusion  existed  on  this  subject  in  some  of  the  States,  under 


388      HAS   THE   CONVENTION   GENERAL   LEGISLATIVE   POWERS? 

ogous  rule  prevail  in  relation  to  the  Convention,  the  framer  of 
the  fundamental  law  ?  Or  may  it,  by  virtue  of  some  transcend 
ent  power  inherent  in  it,  or  of  well-established  custom  or  pre 
cedent,  overleap  all  bounds  interposed  to  limit  its  competence, 
and  take  upon  itself  the  function  of  legislation  in  general  ? 

§  421.  This  question  will  be  examined  upon  both  of  the 
grounds  indicated,  in  their  order,  namely,  first,  upon  that  of 
inherent  power ;  and,  secondly,  upon  that  of  custom  or  prece 
dent. 

First.  The  reasoning  of  those  who  assert  for  the  Convention 
a  general  power  of  legislation  is,  in  its  last  analysis,  that  by 
which  is  vindicated  the  doctrine  of  conventional  sovereignty, 
of  which,  in  its  general  form,  a  refutation  has  already  been  at 
tempted.1  The  particular  argument  in  this  connection  is,  that 
the  business  of  a  Convention  is  extraordinary,  beyond  the  com 
petence  of  either  of  the  recognized  ordinary  agencies  of  the  sov 
ereign  ;  that  that  body  receives  its  commission  from  the  same 
source  as  do  those  agencies,  and,  therefore,  on  the  whole,  is  en 
titled  to  outrank  them  all ;  that,  although  as  a  prudent  precau 
tion  against  dissatisfaction  or  cavil,  it  is  doubtless  better  for  a 
Convention  to  forego  the  exercise  of  extreme  rights  and  to  sub 
mit  its  work  to  the  judgment  of  the  people,  yet,  that  it  is  not  true 
that  it  lacks  power  directly  and  definitively  to  enact  the  supreme 
law  of  the  land  ;  that  if  this  be  conceded,  it  needs  only  to  ana 
lyze  the  general  power  thus  described  into  its  constituents  to 
find  the  power  in  question  ;  that  the  fundamental  conception  of 
the  business  of  a  Convention  is,  that  it  takes  to  pieces,  or,  as  it 
is  sometimes  expressed,  "tramples  under  its  feet,"  the  existing 
Constitution  of  a  State,  and  out  of  the  old  materials,  or  out  of 
old  and  new  together,  erects  a  structure  to  fill  its  place ;  that 
with  the  Constitution  falls,  of  course,  the  government  of  the 
State  ;  that,  starting  thus,  potentially,  at  least,  according  to  its 
own  will,  with  a  clean  slate,  to  deny  to  the  body  possessing 
such  omnipotence  the  power  of  legislation,  would  be  to  deny 
that  the  greater  includes  the  less ;  that,  if  it  can  enact  the  funda 
mental  law,  why  not  also  the  ordinary  statute  law,  of  which  the 

their  first  Constitutions  ;  but  the  question  of  the  power  of  their  legislatures  was 
soon  settled  by  the  courts,  as  above  indicated.     See  Kamper  v.  Hawkins,  1  Va. 
Crim.  Cas.  20. 
1  See  ante,  §§  815-319. 


HAS   THE   CONVENTION    GENERAL   LEGISLATIVE   POWERS?      389 

nature,  it  is  true,  is  somewhat  dissimilar,  but  whose  importance 
is  vastly  inferior?  that  a  Convention  is  competent,  by  constitu 
tional  provision,  to  abolish  all  existing  agencies  of  government, 
and  to  fill  their  places  with  others,  constructed  on  different  prin 
ciples  ;  is  it  then  conceivable,  it  is  asked,  that  it  cannot  do  di 
rectly  what  it  can  do  indirectly,  or  that  the  right  to  exercise  so 
exalted  a  prerogative  is  conditioned  upon  its  exercise  in  a  par 
ticular  mode?  that  as  a  matter  of  fact,  the  Convention,  through 
its  relations  to  the  several  departments  of  the  government,  as  in 
turn  their  destroyer  and  their  creator,  can  exercise  at  will  the 
functions  of  each  of  them  ;  that  being  "  a  virtual  assemblage  of 
the  people,"  it  wields  all  the  powers  which  the  people  themselves 
would  possess  were  it,  in  the  nature  of  things,  possible  for  them 
to  act  directly  ;  hence,  that,  within  the  bounds  fixed  by  its  own 
discretion,  a  Convention  may  make  laws,  or  may  interpret  or 
execute  them. 

§  422.  To  this  argument,  the  following  considerations  con 
stitute,  in  my  judgment,  a  complete  answer  :  — 

If  "the  safety  of  the  people  is  the  supreme  law,"  •  —  of  which 
there  is  no  doubt,  and  which  I  affirm,  —  the  maxim  involves  both 
a  grant  of  power  and  a  limitation  of  power.  It  is  a  grant  of 
power,  inasmuch  as  it  authorizes  and  requires  all  public  func 
tionaries  to  protect  and  defend  the  people  at  whatever  cost ;  to 
do  it,  however,  by  adhering,  first,  to  the  letter,  and  secondly,  to 
the  spirit  of  their  instructions,  that  is,  of  the  Constitution  and 
laws  ;  and,  thirdly,  to  the  principles  on  which  the  social  edifice 
is  bottomed.  When  the  letter  of  the  law  is  silent,  or  its  spirit 
doubtful,  the  principles  indicated  are  the  only  chart  by  which 
official  conduct  can  be  regulated,  and  are  the  first  in  validity 
and  sacredness,  since  they  are  the  sum  of  the  letter  and  spirit 
of  positive  law,  as  well  as  of  that  unwritten  law  which  presided 
at  the  genesis  of  the  social  state  anterior  to  all  positive  law. 
Hence,  it  is  plainly  the  duty  of  such  functionaries  always  to 
conform  to  those  principles,  since  a  disregard  of  them  involves, 
in  substance,  a  violation  of  the  letter  and  spirit  of  the  positive 
law,  and,  at  length,  the  ruin  of  the  Commonwealth.  Do  what 
necessity  requires,  and  ask  for  indemnity  for  technical  breaches 
of  law,  is  the  rule  of  practical  conduct  dictated  by  the  maxim 
under  consideration.1 

1  See  Rice  y.  Foster,  4  Harrington's  R.  479  (485). 


390      HAS   THE   CONVENTION   GENERAL   LEGISLATIVE   POWERS? 

As  a  limitation  of  power,  the  same  maxim  is  of  extensive 
application.  In  cases  of  doubtful  construction  of  constitutional 
provisions,  or  in  which  there  are  no  express  provisions  determin 
ing  grants  of  power,  it  is  the  most  important  touchstone  in  our 
whole  system.  Starting  with  the  postulate  of  representative 
republican  institutions,  the  two  following  propositions  must  be 
accepted,  —  first,  that  whatever  manifestly  endangers  the  safety 
of  those  institutions  must  be  forborne,  though  authorized  by 
an  express  grant  of  power;  and,  secondly,  that  no  act  whatever 
must  be  done  or  tolerated,  in  the  absence  of  such  a  grant,  of 
which  the  tendency,  or,  still  more,  the  direct  effect  would  be  to 
endanger  them.  In  the  case  last  supposed,  no  power  to  do 
the  act  could  be  implied,  under  any  circumstances  whatever, 
no  matter  how  clearly  it  might  seem,  for  the  time,  to  be  expe 
dient.1 

§  423.  Now,  in  the  light  of  these  principles,  is  the  exercise  by 
a  Convention  of  legislative,  or  other  governmental  powers,  in 
addition  to  those  clearly  belonging  to  it,  to  be  considered  as 
within  its  competence,  as  a  constitutional  body  ?  Is  such  an 
assumption  of  power  one  which  threatens  no  danger  to  the  Com 
monwealth  ?  By  the  theory  of  those  who  accord  to  it  such 
powers,  as  soon  as  the  Convention  is  assembled,  the  control  of 
the  existing  government  over  it  is  at  an  end ;  the  Constitution 
lies  torn  into  fragments  under  its  feet ;  and  while  the  work  of 
its  instauration  is  in  progress,  that  body  alone  constitutes  the 
state,  gathering  into  its  single  hands  the  reins  ordinarily  held 
by  the  four  great  systems  of  agencies  constituting  the  govern 
ment,  to  whose  functions  it  succeeds.  If  this  be  so,  what,  but 
its  own  sense  of  justice,  is  to  restrain  such  a  body  from  running 
riot  as  did  the  Thirty  Tyrants  at  Athens  ?  The  jurists  of  the 
Illinois  Convention  of  1862,  as  we  have  seen,  affirmed,  that  the 
Act  under  which  such  a  body  assembles,  is  no  longer  binding, 
when  once  it  has  become  organized.  If,  at  that  moment,  it  has 
also  cast  upon  it,  by  virtue  of  its  great  commission,  all  govern 
mental  powers,  how  easy  to  extend  the  scope  and  the  period  of 
the  exercise  of  those  powers,  under  the  plea  that  expediency 
demands  it.  The  expedient  is  the  appropriate  domain  of  a  legis 
lature.  If,  at  the  moment  of  organizing,  a  Convention  is  en 
dowed  with  legislative  powers,  it  may  be  deemed  expedient  to 
1  Rice  v.  Foster,  ubi  supra. 


HAS   THE   CONVENTION   GENERAL   LEGISLATIVE   POWERS?      391 

subvert  the  system  of  guarantees  by  which  our  liberties  are 
assured  to  us,  and  at  the  same  time  to  withhold  from  the  popu 
lar  vote  the  constitutional  provisions  by  which  the  change  is  to 
be  effected.  Such  a  consummation  would  be  not  merely  possi 
ble  ;  it  would  be  probable.  And,  clearly,  the  possibility  of  its 
occurring  with  an  appearance  of  rightfulness,  is  enough  to  stamp 
as  dangerous  that  theory  of  conventional  powers  from  which  it 
must  flow.  In  the  science  of  politics,  it  is  an  important  point 
gained  to  have  settled  the  limit  where  normal  action  under  the 
Constitution  ends,  and  revolution  begins.  To  have  done  that 
is  practically,  in  most  cases,  to  have  rendered  revolution  impos 
sible. 

The  result  is,  that  a  Convention  cannot  assume  legislative 
powers.  The  safety  of  the  people,  which  is  the  supreme  law, 
forbids  it.  Even,  if  we  suppose  the  body  expressly  empowered 
by  the  legislature  to  exercise  such  powers,  the  right  so  to  do 
must  be  denied,  because  the  same  supreme  law  places  an  abso 
lute  interdict  on  such  a  grant ;  it  is  beyond  the  power  of  a  legis 
lature  to  delegate  any  such  authority. 

§  424.  To  these  general  considerations,  tending  to  discredit 
the  claim  of  Conventions  to  legislative  powers,  must  be  added 
the  decisive  circumstance,  that  our  Constitutions,  as  well  State 
as  Federal,  have  vested  all  the  power  of  ordinary  legislation  the 
people  have  chosrn  to  grant  at  all,  in  our  legislatures.  The 
construction  put  upon  these  provisions  of  our  Constitutions  by 
the  courts,  is,  that  the  grant  is  exclusive,  and  that  the  power  can 
neither  be  delegated  by  the  legislatures,  nor  exercised  by  the 
people,  not  even  by  the  whole  people.1  It  is  doubtless  true,  that 
neither  in  the  cases  establishing  the  construction  referred  to,  nor 
in  our  Constitutions,  is  there  any  reference  to  the  exercise  of 
legislative  power  by  Conventions ;  but  neither  is  there  any  men 
tion  of  its  exercise  by  the  people.  The  conclusion  that  the 
general  grant  of  legislative  power  to  our  legislatures,  is  implicitly 
an  interdict  upon  the  exercise  of  that  power  by  the  people,  is 
derived  mainly  from  the  same  general  considerations  relating  to 
the  safety  of  the  Commonwealth,  above  specified,  and  of  course 
tends  to  justify  an  extension  of  the  interdict  to  all  other  bodies 
with  respect  to  which  the  same  reasons  apply. 

§   425.    Were   additional   arguments  needed  to  demonstrate 
1  For  the  cases  establishing  this  construction,  see  ante,  §  418,  note. 


392      HAS  THE   CONVENTION   GENERAL   LEGISLATIVE   POWERS? 

that  a  Convention  has  no  power  of  ordinary  legislation,  refer 
ence  might  be  made  to  the  fact,  that  the  possession  of  such  a 
power  would  be  extremely  inconvenient,  on  account  of  the  ne 
cessarily  temporary  and  experimental  character  of  such  legisla 
tion,  on  the  one  hand,  and  the  difficulty  of  effecting  changes  in 
the  enactments  of  Conventions,  on  the  other.  Every  Ordinance, 
or  constitutional  provision,  passed  by  a  Convention,  assumes  a 
form  nearly  as  rigid  as  that  of  the  Medan  laws ;  they  can  be 
repealed  only  in  the  formal  way  in  which  they  were  enacted. 
It  would  be  impossible  to  administer  with  success  any  govern 
ment  so  crippled  in  its  legislative  arm.  The  result  would  inev 
itably  be,  that  laws  would  be  constantly  disregarded,  or  that 
Conventions  would  become  so  necessary  and  frequent  that  they 
would  ultimately  supplant  our  legislatures. 

§  426.  Secondly.  In  relation  to  custom  and  precedent  —  it 
is  not  denied  by  those  who  attribute  to  Conventions  a  general 
power  of  legislation,  that  that  view  receives  little  countenance 
from  the  practice  of  those  bodies,  in  former  times.  But  the  lack 
of  precedents  is  explained  away  by  the  consideration,  that  the 
actual  exercise  of  such  a  power  would  naturally  be  infrequent 
and  exceptional,  as  it  would  ordinarily  occur  only  when  great 
crises  demanded  instant  legislative  remedies,  the  legislature  itself 
being  either  not  in  session,  or  controlled  by  treasonable  influ 
ences.  Moreover,  it  is  plausibly  argued,  that  the  fact  that  a 
power  is  usually,  because,  perhaps,  more  conveniently,  exercised 
by  one  of  two  bodies,  is  no  reason  for  denying  the  existence  of 
it  in  the  other.  To  hold  thus,  it  is  said,  would  be  to  maintain, 
that  the  inherent  rights  of  an  assembly,  which  preeminently 
represents  the  sovereign,  are  forfeited  by  non-user;  rights,  of 
which  the  exercise,  on  account  as  well  of  the  extraordinary  char 
acter  of  the  body  possessing  them,  as  of  the  conditions  under 
which  only  they  are  likely  to  be  asserted,  must  be  occasional. 
Still,  however  infrequent,  it  is  claimed  that  precedents  exist,  and 
there  are  pointed  out  to  us  three  classes  of  cases,  in  which  Con 
ventions  have,  it  is  said,  exercised  the  general  power  of  legisla 
tion.  These  are  —  first,  the  cases  of  the  Conventions  which  framed 
the  first  Constitutions  of  some  of  the  States,  during  the  Revo 
lution,  upon  the  exceptional  and  irregular  character  of  which 
comment  has  already  been  made  ;  secondly,  cases  in  which  Con 
ventions  have  undertaken,  in  non-revolutionary  times,  by  ordi- 


HAS   THE   CONVENTION   GENERAL   LEGISLATIVE   POWERS?      393 

nance,  to  regulate  matters  of  ordinary  administration,  or  to  do 
other  acts  manifestly  legislative  in  character ;  and,  thirdly,  cases 
in  which  Conventions  have  inserted  in  Constitutions  provisions 
partaking  rather  of  a  legislative  than  fundamental  character,  as 
relating  largely  to  matters  of  detail. 

§  427.  In  relation  to  these  classes  of  cases,  I  observe  that  they 
are  none  of  them  deemed  of  much  weight  as  precedents. 

1.  It  is  true,  that  many  of  the  earliest  Conventions,  even 
where  called  expressly  to  frame  and  establish  Constitutions,  were 
also  charged  with,  or  assumed,  other  functions,  to  wit,  those 
of  provisional  governments.  Accordingly,  the  journals  of  those 
bodies  are  filled  about  equally  with  their  proceedings  in  discharge 
of  governmental  functions,  and  of  their  special  office  as  Consti 
tutional  Conventions  —  propositions  to  be  embodied  in  their 
Bills  of  Rights,  or  Constitutions,  for  instance,  being  mixed  up 
with  measures  relating  to  the  internal  police,  to  the  raising  of 
troops  or  of  revenue,  or  to  the  punishment  of  their  Tory  oppo 
nents.  Obviously,  cases  like  these,  arising  in  revolutionary 
times,  cannot  properly  be  cited  as  precedents  for  the  conduct 
of  similar  bodies  in  times  of  peace  and  constitutional  order. 
But  when  it  is  considered,  that  the  moment  the  Conventions 
referred  to  overstepped  the  limits  which  bounded  their  jurisdic 
tion  and  entered  upon  the  domain  of  actual  administration,  that 
is,  of  government,  they  became  bodies  of  a  vvholly  different  char 
acter,  to  wit,  Revolutionary  Conventions,1  it  is  clear,  that  the 
alleged  precedents  are  of  no  value  whatever. 

§  428.  As  to  the  second  class  of  cases,  in  which  a  few  Con 
ventions  have,  by  ordinance,  legislated  outside  of  their  special 
province,  their  value  as  precedents  is  of  less  account,  because 
they  have  been  of  infrequent  occurrence,  and  the  subjects  of 
that  legislation  have  been  commonly  trivial.  A  Convention 
being  in  session,  and  the  progress  of  business  developing  a 
necessity  for  further  legislation,  to  avoid  the  delay  and  expense 
attending  the  regular  course  of  proceeding  in  the  legislature, 
that  body  has  sometimes  ordained  the  regulations  required,  and 
the  government  and  people  have  acquiesced.  Here,  it  may  be, 
that  it  was  not  thought  expedient  to  insist  too  rigidly  upon  pre 
cise  conformity  to  principles  in  matters  of  small  c.oncern ;  and, 
perhaps,  in  the  infancy  of  our  institutions  (for  they  are  yet  in 
1  See  ante,  §§  7-10. 


394      HAS  THE   CONVENTION   GENERAL  LEGISLATIVE   POWERS? 

the  gristle)  it  has  not  always  been  seen  that  a  Convention  is  so 
radically  distinct  from  a  legislature  as  it  unquestionably  is. 
Considering  the  ignorance  still  prevalent,  even  among  educated 
men,  respecting  the  theory  of  Conventions,  it  is  not  strange  that 
it  should  be  thought  competent  for  them  to  do  what  history 
shows  the  Conventions  of  the  revolutionary  period  certainlv  did. 
And,  in  truth,  the  only  way  of  breaking  the  force  of  those  cases 
as  precedents,  is  to  deny  the  normal  and  constitutional  character 
of  the  latter  Conventions,  which,  as  we  have  seen,  may  very 
justly  be  done.  The  Conventions  of  our  Revolution  were,  in 
many  of  the  States,  the  governments  of  those  States.  If  they 
legislated,  they  did  so  in  this  their  exceptional  character.  If  the 
Conventions  of  our  day  can  also  legislate,  and  if  the  evidence 
that  they  can  do  so  is  derived  from  the  practice  of  those  early 
Conventions,  they  must,  also,  potentially,  at  least,  be  the  gov 
ernments  of  their  respective  States  —  which  is  the  doctrine  of 
conventional  sovereignty. 

§  429.  So,  in  the  third  class  of  cases,  where  the  jurisdictions 
of  legislatures  and  Conventions  clash,  because,  having  a  com 
mon  frontier,  cases  arise  in  which  it  is  doubtful  to  which  body 
they  belong,  it  is  unfair  to  make  an  assertion  of  jurisdiction  by 
either  a  binding  precedent  as  to  the  right.  A  Convention  is 
authorized  to  embody  in  the  Constitution  general  provisions 
establishing  principles,  but  leaving  details  dependent  on  consid 
erations  of  temporary  expediency  to  be  determined  by  the  legis 
lature.  Thus,  take  the  provision  relating  to  Homestead  Exemp 
tion,  as  it  is  called;  a  Convention  is  competent  to  recommend 
the  adoption  of  the  principle,  in  such  a  form  and  under  such 
conditions,  as  is  consonant  with  the  general  conception  of  fun 
damental  legislation,  and  no  further.  It  may  indicate  what  has 
become  the  settled  policy  of  the  State,  but,  if  it  go  beyond  that, 
developing  principles  into  minute  provisions,  likely,  as  circum 
stances  shift,  to  need  modification,  it  trespasses  upon  the  domain 
of  the  legislature.  Doubtless,  a  Constitution,  stuffed  with  legis 
lative  details,  may  acquire  legitimacy,  by  its  being  ratified  by 
the  people  ;  for,  where  a  Constitution  contains  a  positive  pro 
vision,  the  courts  cannot  ignore  it,  or  annul  it ;  but  the  impro 
priety  of  such  legislation  would  not  thereby  be  disproved  or 
lessened.  If  legislative  provisions  are  thrust  into  a  Constitu 
tion  and  passed  upon  by  the  people,  ought  they  to  have  the 


HAS   THE   CONVENTION   GENERAL   LEGISLATIVE   POWERS?      395 

force  of  laws  any  more  than  when  submitted  to  the  people  dis 
connected  from  provisions  truly  fundamental  ?  In  the  latter 
case,  we  have  seen,  that  our  courts  pronounce  them  wholly 
without  validity  as  laws.  If  the  same  judgment  be  not  given 
respecting  a  constitutional  provision  consisting  of  legislative 
details,  it  is  simply  because  it  would  be  in  effect  to  permit  our 
judiciary  to  annul  the  charters  under  which  they  act,  under  the 
pretext  of  striking  from  them  provisions  not  properly  funda 
mental. 

§  430.  With  these  remarks  upon  the  general  question  of  the 
power  of  Conventions  to  legislate,  I  pass  to  a  consideration 
of  certain  practical  questions  which  have  arisen,  involving  an 
application  of  the  principles  I  have  developed. 

(a).  The  first  of  these  which  I  shall  mention,  arose  in  the  Illi 
nois  Convention  of  1862,  under  the  following  state  of  facts. 
About  a  year  before  the  Convention  assembled,  the  legislature 
of  Illinois  had  passed  three  Acts  relating  to  the  city  of  Chicago, 
or  to  the  townships  over  which  it  extended,  which  were  obnox 
ious  to  a  portion  of  its  citizens,  and  particularly  an  Act,  approved 
February  21,  1861,  entitled  "  An  Act  to  establish  a  Board  of 
Police  in  and  for  the  City  of  Chicago,  and  to  prescribe  their 
Powers  and  Duties,"  the  force  and  effect  of  which  was  to  turn 
out  of  office  the  old  city  police,  and  to  vest  the  police  powers  of 
the  city  in  a  board  of  commissioners  elected  by  the  voters  of  the 
county  in  which  the  city  was  situated.  The  two  other  Acts 
related  to  matters  entirely  foreign  from  the  mode  of  electing  or 
appointing  city  officers.  The  Convention  met  in  January,  1862, 
and  toward  the  end  of  its  session,  March  21,  adopted  an  Ordi 
nance  providing  for  an  election  to  be  held  in  the  city  of  Chicago 
on  the  third  Tuesday  of  April  following,  at  which  the  legal  voters 
of  said  city  were  to  cast  ballots  on  which  should  be  printed  or 
written  the  words,  "  For  the  city  of  Chicago  electing  its  own 
officers,"  or  the  words,  "Against  the  city  of  Chicago  electing 
its  own  officers."  The  Ordinance  then  went  on  to  provide, 
that,  in  case  a  majority  of  the  electors  voting  at  said  election 
should  be  in  favor  of  said  city  electing  its  own  officers,  then 
it  should  not  be  lawful  for  any  officers  of  that  city  to  be  chosen 
in  any  other  manner  than  by  a  vote  of  the  people  of  said  city, 
or  appointed  in  any  other  manner  than  by  the  mayor  and  al 
dermen,  as  provided  by  present  laws,  and  that  the  three  Acts 


396      HAS   THE   CONVENTION   GENERAL   LEGISLATIVE   POWERS? 

referred  to  should  be,  and  the  same  were,  each  and  all  of  them, 
thereby  repealed. 

§  431.  After  the  adjournment  of  the  Convention,  on  the  third 
Tuesday  of  April,  1862,  the  electors  of  the  city  of  Chicago,  as 
required  by  this  Ordinance,  voted  on  the  question  of  electing 
their  own  officers,  and,  as  was,  of  course,  foreseen  by  its  framers, 
voted  affirmatively.  So  far,  admitting  the  propriety  of  the  ac 
tion  of  the  Convention,  the  obnoxious  Acts  of  the  legislature 
would  seem  to  have  been  repealed.  But  other  facts  still  further 
complicate  the  case.  The  Act  of  Assembly  calling  the  Conven 
tion  had  required  that  body  to  submit  to  a  vote  of  the  people 
the  alterations  or  amendments  proposed  by  it,  and  had  declared, 
that  said  alterations  or  amendments  should  not  take  effect  "  un 
less  adopted  by  a  majority  of  the  legal  voters  voting  at  such 
elections."  Accordingly,  the  Constitution  framed  by  the  Conven 
tion,  including,  as  a  part  of  its  Schedule,  the  Ordinance  above 
described,  in  totidem  verbis,  was,  by  the  Convention,  submitted 
to  a  vote  of  the  people  of  the  whole  State,  at  an  election  held 
on  the  17th  day  of  June,  1862,  at  which  election  the  entire 
instrument,  save  a  few  provisions  not  involved  in  this  discus 
sion,  which  were  separately  submitted,  was  rejected  by  a  deci 
sive  vote.  An  important  circumstance,  to  be  noted,  to  aid  in  de 
termining  the  effect  of  these  various  proceedings  is,  that  imme 
diately  succeeding  the  Ordinance,  as  embodied  in  the  Schedule, 
was  the  following  clause,  viz. :  —  "  The  provisions  of  this  Con 
stitution,  required  to  be  executed  prior  to  the  adoption  or  rejec 
tion  thereof,  shall  take  effect  and  be  in  force  immediately." 

§  432.  Upon  these  facts  embarrassing  questions  arose  :  When 
the  people  of  Chicago  had  voted  in  favor  of  electing  their  own 
officers,  were  or  were  not  the  three  legislative  Acts  referred  to 
in  the  Ordinance,  thereby  repealed  ?  Was  there  any  police  sys 
tem  in  force  in  that  city,  and  if  so,  which  was  it,  the  city  police 
or  the  county  police  ?  If  by  the  action  of  the  Convention,  or 
of  the  Chicago  electors,  or  of  both  combined,  the  repeal  of  the 
obnoxious  laws  was  effected,  what  influence  upon  them  had  the 
subsequent  vote  of  the  whole  people  of  the  State,  rejecting  the 
Constitution,  Ordinance  and  all,  with  the  exceptions  indicated? 
Did  not  the  additional  clause,  giving  immediate  effect  to  such 
provisions  of  the  Constitution  as  were  required  to  be  executed 
prior  to  the  adoption  or  rejection  thereof,  save  the  Ordinance 


HAS   THE   CONVENTION   GENERAL   LEGISLATIVE   POWERS?      397 

from  the  fate  reserved  for  the  rest  of  the  instrument,  especially 
as  that  Ordinance  had  been  passed  upon  and  adopted  by  that 
part  of  the  people  of  the  State  who  were  to  be  affected  by  it  ? 

To  settle  these  questions,  an  application  was  made  to  the 
Supreme  Court  of  the  State  for  a  mandamus  to  compel  the 
board  of  police  commissioners,  appointed  under  the  Act  of  1861, 
to  vacate  their  offices  and  to  give  place  to  commissioners  to  be 
elected  by  the  legal  voters  of  the  city  in  pursuance  of  the  Ordi 
nance.  The  case  was  very  ably  and  elaborately  argued,  and  a 
decision  was  finally  rendered  denying  the  writ,  upon  the  ground, 
as  is  understood, —  for  no  opinion  was  ever  filed  by  the  court,  — 
that  by  the  vote  of  the  people  rejecting  that  instrument,  the 
entire  Constitution  and  Schedule  were  swept  away  and  became 
of  no  force  or  effect  for  any  purpose.  At  all  events,  the  Acts, 
sought  to  be  repealed  by  the  Convention,  were  continued  in 
force  until  repealed  by  the  legislature,  and  hence  the  decision  of 
the  court  involved  practically  the  following  conclusion,  that  the 
Convention  was  not  competent,  even  with  the  cooperation  of  that 
part  of  the  people  to  be  affected  by  it,  to  repeal  an  Act  of  the 
legislature,  local  in  its  scope  and  operation.1 

§  433.  A  brief  abstract  of  the  arguments  of  counsel  in  this 
case,  relative  to  the  power  of  the  Convention  to  repeal  laws, 
may  be  of  interest. 

On  the  part  of  the  relator  it  was  contended,  that  about  the 
intention  of  the  Convention  in  passing  the  Ordinance  of  March 
21st,  and  hence  relative  to  the  extent  of  power  which  that  body 
meant  to  assert,  there  could  be  no  doubt ;  it  certainly  claimed 
the  right  to  legislate ;  the  only  question  was,  Had  it  that  right  ? 
That  in  relation  to  that  question,  it  was  clear,  that  it  was  com 
petent  for  that  body  to  prohibit  the  appointment  thereafter  of 
any  person  to  any  office  for  the  city  of  Chicago  by  the  Governor 
or  General  Assembly  ;  that,  at  least,  the  power  of  the  Conven 
tion  to  deliberate  and  act  upon  such  a  question,  had  not  been 
disputed,  and  it  would  be  difficult  to  show,  that  it  could  not  so 
far  change  or  abrogate  existing  statutes  as  to  make  the  legisla 
tion  of  the  State  conform  to  the  supposed  new  order  of  things ; 
that  the  repealed  Acts  were  in  palpable  conflict  with  the  prin- 

i  People  of  the  State  of  Illinois,  ex  rel  The  City  of  Chicago  v.  A.  C.  Co 
ventry  et  a/.,  April  Term,  1862,  of  the  Supreme  Court  of  Illinois.  Case  not 
reported. 


398      HAS   THE   CONVENTION   GENERAL  LEGISLATIVE   POWERS? 

ciple  of  the  new  provision  about  to  be  adopted  by  the  Conven 
tion  as  a  part  of  the  fundamental  law,  and  therefore  the  Ordi 
nance  declared,  that  "  the  powers  and  duties  of  all  officers 
appointed  under  and  by  virtue  of  said  Acts,  shall  immediately 
cease  ;  "  that  so  far  as  respected  the  legislating  of  those  officers 
out  of  office,  the  power  to  do  that  had  been  frequently  exercised, 
as  in  the  Illinois  Constitution  of  1848,  and  had  never  been  ques 
tioned  ;  that  the  effect  of  every  new  Constitution  was  to  annul 
all  existing  statutes  in  conflict  with  its  provisions,  and  if  any 
statutes  were  continued  in  force,  they  were,  strictly  speaking, 
reenactments  by  that  Convention,  to  which  alone  we  must  look 
as  the  source  of  their  validity  ; l  that  if  that  body  could  thus 
reenact  statutes,  or  continue  them  in  force  for  a  prescribed  period 
only,  it  was  idle  to  deny  to  it  the  right  in  express  terms  to  repeal 
them ;  that,  if  it  was  admitted  that  the  Convention  possessed 
legislative  functions  for  any  purpose,  no  limit  could  be  assigned 
to  its  exercise  of  them  ;  that  the  extent  of  its  power  to  legislate 
must  be  subject  only  to  its  own  discretion,  which  no  other  tribu 
nal,  legislative  or  judicial,  had  power  to  review ;  that  the  busi 
ness  of  a  Convention  was  to  make  a  Constitution  —  to  ordain 
organic  laws.  But  what  were  organic  laws  ?  Who  was  to  de 
cide  ?  The  answer  was  plain  and  free  from  difficulty ;  the  Con 
vention  had  the  sole  power  of  determining  what  should  be  the 
organic  law,  and  whatever  it  prescribed  (subject,  in  some  cases, 
to  the  ratification  of  the  people)  became  a  part  of  the  Constitu 
tion  ;  that  the  courts  could  not  control  or  annul  its  decision, 
except  in  the  single  case  where  enactments  were  repugnant  to 
the  Federal  Constitution  ;  that,  with  that  exception,  no  provision 
inserted  in  the  organic  law  could  be  annulled  by  any  power 
on  earth  save  by  the  people  acting  in  their  highest  sovereign 
capacity. 

§  434.  For  the  respondents,  it  was  contended,  that  the  Conven 
tion,  in  passing  the  Ordinance  in  question,  had  set  at  defiance 
the  provisions  of  the  Act  of  the  legislature  under  which  the 
delegates  to  it  had  been  elected,  and  had  assumed  to  be  vested 
with  the  supreme  authority  of  the  people  of  Illinois ;  that  the 
supreme  authority  of  a  community  includes  executive  and  judi 
cial  as  well  as  legislative  powers,  all  of  which  it  might  with 
equal  justice  claim  a  right  to  exercise  without  control,  if  it  were 
l  Woods  v.  Blanchard,  19  III.  R.  40. 


CAN   CONVENTIONS   APPROPRIATE   MONEY  ?  399 

really  the  sovereign  body  it  pretended  to  be ;  that  the  claim  of 
powers  so  extensive  was  discredited  by  the  best  writers  on  gov 
ernment,  and  by  the  examples  of  the  fathers  throughout  our 
entire  history,  all  of  whom  had  united  in  the  sentiment  forcibly 
expressed  by  the  authors  of  the  "  Federalist,"  "  that  the  accumu 
lation  of  all  powers,  legislative,  executive,  and  judiciary,  in  the 
same  hands,  whether  of  one,  a  few,  or  many,  and  whether 
hereditary,  self-appointed,  or  elective,  may  be  justly  pronounced 
the  very  definition  of  tyranny ; "  that,  clothed  with  such  powers, 
the  Convention  was  subject  to  no  Constitution  or  law,  and 
might  have  perpetuated  its  own  existence  and  powers,  and  the 
people  could  have  escaped  from  its  tyranny  only  by  a  revo 
lution  resulting  in  a  dethronement  of  the  usurpers  of  their 
power;  that  the  principles  of  our  government  led  to  no  such 
disastrous  results ;  but  that  those  results  were,  on  the  contrary, 
the  fruits  of  a  perversion  of  those  principles ;  that  the  funda 
mental  idea  of  our  system  of  governments  was,  that  the  sover 
eignty  resided  in  the  people,  who,  for  its  practical  exercise,  con 
fided  it,  or  so  much  of  it  as  they  deemed  desirable,  to  separate 
agencies ;  that  all  acts  of  either  of  those  agencies,  within  the 
sphere  of  its  powers,  were  acts  of  the  people ;  that  in  general 
the  powers  granted  to  each  of  those  agencies  or  departments 
were  exclusively  its  own,  liable  to  be  resumed  by  the  people, 
but,  so  long  as  vested  in  the  several  departments,  not  to  be 
rightfully  exercised  even  by  the  people  themselves ;  that  from 
these  principles  it  followed,  not  only  that  the  people  might  and 
did  limit  the  powers  delegated  to  their  representatives,  but  that 
they  equally  might  and  did  limit  their  own  powers;  and,  conse 
quently,  even  if  the  Convention  wielded  all  the  powers  of  the 
people,  it  could  not  perform  an  act  of  ordinary  legislation,  be 
cause  the  people  had  by  the  Constitution,  granted  the  power  of 
legislation  to  the  General  Assembly,  and  had  thereby  limited 
their  own  power  in  that  behalf.1 

§  435.  (b).  The  next  practical  question  to  which  I  shall  ad 
vert,  is  one  of  intrinsically  so  much  moment,  and  of  such  fre 
quent  occurrence,  that  I  shall  devote  to  it  considerable  space, 

1  The  argument,  so  far  as  it  proceeded  upon  the  ground  that  the  people  could 
limit  themselves  by  the  Constitution,  was  mainly  that  of  Mr.  Webster  before 
the  United  States  Supreme  Court,  in  the  case  of  Luther  v.  Borden,  7  How.  R. 
1.  For  the  full  argument,  see  Webster's  Works,  Vol.  VI.  p.  221,  et  seq. 


400         CAN  CONVENTIONS  APPROPRIATE  MONEY? 

namely :  Have  Conventions  power  to  appropriate  money  ?  The 
power  to  appropriate  money,  when  asserted  at  all,  has  been  uni 
formly  claimed  upon  the  ground  that  a  Convention  is  possessed, 
subject  only  to  the  Federal  Constitution,  of  sovereign  powers, 
and  consequently,  as  involved  in  that  grant,  of  all  special  ad 
ministrative  or  governmental  powers,  legislative,  executive,  and 
judicial.  On  the  other  hand,  legislative  power  has  been  gener 
ally  denied  to  it  on  the  ground  that  the  Convention  is  not  in 
any  sense  sovereign  ;  that  it  is  even,  in  the  extent  of  its  powers, 
inferior  to  the  legislature,  by  which  Acts  may  be  definitively 
passed,  while  our  Conventions  are  invested,  save  in  exceptional 
cases,  with  a  recommendatory  power  only,  —  being,  in  truth,  but 
mere  committees  charged  with  a  certain  legislative  function,  but 
not  with  that  of  legislation  in  general,  much  less  with  those  of 
the  executive  or  judicial  departments.  To  this  are  commonly 
added  considerations  of  the  danger  of  intrusting  the  public 
purse  to  an  assembly  consisting  of  a  single  chamber,  and  of 
the  improbability,  therefore,  that  the  founders  of  a  system  so 
guarded  and  balanced  as  ours,  would  have  left  it  in  the  control 
of  such  a  body,  without  a  single  check  against  usurpation.  I 
shall,  therefore,  only  give  a  short  statement  of  some  cases  in 
which  the  question  has  arisen,  or  the  power  been  exercised,  and 
of  the  decisions  and  results  thereof,  so  far  as  known. 

§  436.  Resolutions  or  ordinances  have  been  passed  by  Con 
ventions,  appropriating  the  public  moneys,  for  the  following 
purposes : — 

1.  To  pay  the  salaries  of  the  officers  or  members,  and  to  de 
fray  the  incidental  expenses  of  those  bodies. 

2.  For  benevolent,  charitable,  or  other  purposes,  outside  the 
scope  of  their  special  duties  or  business,  as  Conventions. 

1.  The  precedents  in  the  earliest  Conventions,  excepting  those 
which  clearly  acted  as  provisional  governments,  are  not  in  favor 
of  the  power  in  question.  Thus,  in  that  of  Massachusetts,  of 
1779-80,  a  committee  was  appointed  "to  apply  to  the  General 
Court  for  the  payment  of  the  members  of  this  Convention,  to 
be  made  out  of  the  treasury  of  the  State,"  and  also  "  for  pay 
ment  of  such  charges  as  have  arisen,  or  may  arise,  in  prosecut 
ing  the  business  of  this  Convention."  The  action  of  the  Fed 
eral  Convention  of  1787  was  similar.  Instead  of  assuming  the 
power  to  determine  their  own  salaries  and  to  vote  money  to  pay 


CAN   CONVENTIONS   APPROPRIATE   MONEY?  401 

them,  the  whole  subject  was  referred  to  Congress.  On  the  5th 
of  September,  it  was  "  Resolved,  That  the  United  States  in 
Congress  be  requested  to  allow  and  cause  to  be  paid  to  the 
secretary  and  other  officers  of  this  Convention  such  sums  in 
proportion  to  their  respective  times  of  service  as  are  allowed  to 
the  secretary  and  similar  officers  in  Congress."  This  resolution 
was  followed  by  an  order  directing  the  secretary  of  the  Con 
vention  to  make  out  and  transmit  to  the  treasury  office  of  the 
United  States  an  account  for  the  said  services  and  for  the  inci 
dental  expenses  of  the  Convention.  The  Act  calling  the  Illi 
nois  Convention  of  1847,  authorized  that  body  to  elect  a  printer, 
and  fixed  his  compensation  at  the  rate  received  by  the  public 
printer  from  the  General  Assembly.  A  proposition  was  made 
in  the  Convention  for  a  committee  to  receive  proposals  for  doing 
the  printing  of  that  body,  and  directing  that  it  be  let  to  the  low 
est  responsible  bidder.  This  motion  was  resisted,  on  the  ground 
of  a  want  of  power  to  vary  the  enabling  Act ;  that  the  proposi 
tion  to  do  so  involved  the  right  to  appropriate  the  sums  agreed 
to  be  paid,  since  they  could  not  be  claimed  under  the  Act,  if  the 
latter  were  repudiated.  The  motion  was  for  that  reason  laid 
upon  the  table.  On  a  similar  ground,  a  motion  made  in  the 
New  York  Convention  of  1846,  to  appoint  stenographers,  was 
negatived. 

§  437.  On  the  other  hand,  propositions  of  the  kind  specified 
have  often  been  adopted  and  acted  on  by  Conventions.  Thus, 
the  Pennsylvania  Convention  of  1837,  in  the  course  of  each  of 
its  two  sessions,  passed  a  resolution  appropriating  money  as  a 
compensation  to  the  clergymen  who  officiated  therein,  though 
not  without  vigorous  protest  on  the  ground  of  want  of  power. 
So,  in  the  Louisiana  Convention  of  1844,  a  resolution  was  car 
ried  authorizing  the  State  Treasurer  to  advance  to  its  printer 
the  sum  of  one  thousand  dollars,  "  for  the  subscription  to  the 
Reporter,"  a  daily  paper  containing  a  report  of  its  debates.  The 
Convention  of  1864  of  the  same  State  made  similar  appropri 
ations,  to  a  large  amount,  to  be  paid  out  of  "  the  funds  in  the 
public  treasury  not  otherwise  appropriated,"  for  extra  services 
rendered  by  its  officers.  In  the  Indiana  Convention  of  1850, 
the  question  of  its  power  to  appropriate  money  arose  on  a  mo 
tion  to  elect  a  printer  to  the  Convention.  This  motion  was  op 
posed  on  the  two  grounds,  —  1,  that,  under  the  laws  of  Indiana, 
26 


402  CAN   CONVENTIONS   APPROPRIATE   MONEY? 

there  was  a  State  printer,  under  bonds  to  do  the  public  printing, 
who  claimed,  and  was  in  law  entitled,  to  do  that  of  the  Con 
vention  ;  and,  2,  that  the  Convention  was  not  competent  to 
appropriate  money  to  pay  a  printer,  should  it  elect  one.  After 
a  long  discussion,  which  turned  mainly  on  the  question  whether 
the  State  printer,  elected  by  the  General  Assembly,  and  under 
bonds  "  for  the  prompt,  accurate,  and  workmanlike  execution 
of  the  public  printing,  and  the  faithful  performance  of  all  the 
duties  required  of  him  by  law,"  was  ex  officio  printer  to  the 
Convention,  it  was  determined  that  he  was  not,  and  that  body 
proceeded  to  elect  one  to  fill  that  office,  without,  however,  mak 
ing  any  provision  for  his  payment.  To  this  action  a  formal 
protest  was  made  by  a  minority,  and  entered  on  its  journal, 
affirming  the  right  of  the  State  printer  to  do  the  printing  of  the 
Convention,  and  denying  the  power  of  the  latter  to  appropriate 
money  to  pay  the  printer  elected  by  it.  The  Illinois  Conven 
tion  of  1862,  toward  the  end  of  its  session,  adopted  a  resolu 
tion,  almost  unanimously,  making  appropriations  to  certain 
State  officers  for  extra  services  in  relation  to  the  Convention. 
A  doubt  being  expressed  in  regard  to  the  power  of  the  Conven 
tion  to  make  the  appropriation,  it  was  answered,  that  the  legis 
lature  had  appropriated  money  to  defray  the  expenses  of  the 
Convention,  and  provided,  that  for  the  compensation  of  its  offi 
cers  —  the  amount  to  be  determined  by  the  Convention  —  the 
president  should  issue  his  certificate  to  the  auditor  of  public 
accounts,  who  should  issue  warrants  for  the  sums  mentioned 
therein,  upon  the  State  Treasurer.  It  is  obvious,  however,  that 
this  provision  did  not  cover  the  case  of  extra  or  other  compen 
sation  to  State  officers,  who  were  specially  directed  by  law  to 
perform  certain  services  for  the  Convention  in  their  official 
capacity,  but  who  were  not  mentioned  in  the  Act  as  entitled 
to  compensation.  And  of  this  opinion,  evidently,  was  the  State 
Auditor,  for  on  presentation  of  the  resolution  of  the  Convention 
making  the  appropriation,  that  officer  refused  to  issue  his  war 
rant  for  payment  of  the  money.  By  special  Act,  however,  the 
General  Assembly  afterwards  ordered  compensation  to  be  made 
to  the  officers  named  for  the  same  services  —  the  Act  reciting 
as  a  reason  for  the  appropriation  the  refusal  of  the  State  Au 
ditor.1 

l  Act  of  January  28,  1863,  Illinois  Laws  of  1863,  pp.  11,  12. 


CAN    CONVENTIONS   APPROPRIATE   MONEY  ?  403 

§  438.  In  regard  to  the  above  appropriations,  it  is  to  be  noted 
that  they  were  made  under  an  assumption  of  power  to  do  so 
inherent  in  those  bodies,  and  without  special  authorization  to 
that  effect  in  the  Acts  calling  them.  But,  were  it  true,  that 
appropriations  thus  loosely  made  were  honored  by  the  State 
authorities,  they  would  amount  to  but  little,  in  my  judgment, 
as  settling  the  question  of  power.  They  have  not,  however, 
commonly  thus  been  honored.  It  has  been  a  usual  consequence 
of  the  meeting  of  Conventions  that  our  legislatures  have  fol 
lowed  it  up  with  appropriations  out  of  the  treasury  to  meet 
what  have  been  styled  appropriations  by  those  bodies.  It  is 
probable  that,  practically,  those  formal  Ordinances  disposing  of 
the  public  funds  have  been  regarded  rather  as  recommendations 
than  as  mandates  of  an  authority  having  the  right  to  enforce  its 
will.  To  bring  the  question  to  a  test,  it  is  only  necessary  to 
conceive  a  custodian  of  the  public  moneys  receiving  a  warrant 
from  a  Convention  —  a  body  by  whom  he  was  not  appointed 
and  to  whom  he  is  not  by  law  made  responsible  —  directing  him 
to  turn  over  to  the  bearer  the  public  funds  in  his  hands.  Is  it 
possible  that  any  officer,  so  situated,  would  feel  authorized  to 
obey  such  a  warrant  ?  And,  suppose  he  were  to  obey,  would 
that  warrant  be  pleadable  in  bar  of  an  action  on  a  Treasurer's 
bond  to  the  State,  if  he  should  have  failed  on  demand  to  turn 
over  such  funds  to  his  successor,  appointed  in  the  manner  laid 
down  in  the  Constitution?  Yet,  the  power  in  a  Convention 
to  appropriate  one  dollar  of  the  public  money  is  a  power  to 
seize  and  to  use  as  it  may  please  the  entire  treasure  of  the  State. 

§  439.  2.  In  relation  to  the  second  class  of  cases,  in  which 
Conventions  have  assumed  to  make  appropriations  from  the 
treasuries  of  their  respective  States,  for  general  objects,  foreign 
from  the  special  purpose  of  those  bodies,  less  need  be  said,  as 
the  arguments  against  the  right  are  the  same,  and  apply  with 
increased  force,  whilst  the  instances  in  which  it  has  been  as 
serted  are  fewer  in  number.  In  the  absence  of  legislative  pro 
vision,  it  is  doubtless  often  convenient,  that  Conventions  should 
assume  the  power  to  appropriate,  or,  at  least,  go  through  the 
forms  of  appropriating,  money,  in  the  execution  of  their  com 
missions;  and  where  the  power  is  exercised  only  to  facilitate 
the  transaction  of  their  proper  business,  it  is,  if  unauthorized, 
obnoxious  to  less  serious  objection.  But  the  case  is  different 


404  CAN   CONVENTIONS   APPROPRIATE   MONEY? 

in  relation  to  matters  outside  the  business  assigned  to  them. 
There,  it  seems  clear,  that,  no  matter  what  the  circumstances 
might  be  under  which  the  power  should  be  exercised,  it  would 
be  a  power  usurped.  Accordingly,  it  will  surprise  no  one,  that  in 
the  better  days  of  the  republic,  following  the  Revolutionary  pe 
riod  ending  with  the  adoption  of  the  Federal  Constitution,  few 
instances  of  such  legislation  have  occurred,  and  those  mainly 
within  the  last  five  years.  Of  these  I  shall  mention  but  two. 

§  440.  The  Illinois  Convention  of  1862.  in  a  paroxysm  of 
patriotic  zeal,  just  after  the  capture  of  Fort  Donelson,  passed 
the  following  remarkable  Ordinance  :  — 

"  Be  it  ordained  by  the  people  of  the  State  of  Illinois,  repre 
sented  and  assembled  in  Constitutional  Convention,  — 

"  That  the  sum  of  five  hundred  thousand  dollars,  or  so  much 
thereof  as  may  be  necessary,  be,  and  the  same  is  hereby,  appro 
priated  out  of  the  Treasury  of  the  State  of  Illinois,  for  the 
exclusive  purpose  of  relieving  the  wants  and  sufferings  of  the 
brave  sons  of  Illinois,  who  have  been  or  may  be  wounded  in 
the  battles  fought  by  them  and  their  brothers  in  the  defence  of 
the  Union  and  the  Constitution." 

Sections  two  and  three  authorized  the  issue  by  the  governor, 
auditor,  and  treasurer  of  Illinois,  of  State  bonds  for  that  amount, 
and  provided  for  the  disbursement  of  the  money  by  those  offi 
cers  jointly  with  a  committee  to  be  appointed  by  the  Conven 
tion.  Praiseworthy  as  the  object  of  this  Ordinance  was,  the 
assumption  in  it  of  general  powers  of  legislation  was  so  glaring 
that  some  of  the  firmest  friends  of  the  soldier  in  the  body  were 
constrained  to  oppose  its  passage.  They  united  in  a  protest, 
setting  forth,  that,  in  their  opinion,  the  Convention  had  no  power 
to  authorize  appropriations  from  the  State  Treasury,  and  that 
the  assumption  of  such  a  power  in  so  important  a  matter  as  the 
issue  of  State  bonds,  was  an  evidence  of  a  loose  administration 
of  public  affairs,  and  directly  calculated  to  injure  the  credit  of 
the  State.  The  intention  of  those  who  passed  the  Ordinance 
was  declared  to  be  to  issue  the  bonds  immediately,  but  for  some 
reason  this  was  never  done.  What  might  have  been  attempted, 
had  the  Constitution  framed  by  the  Convention  been  adopted, 
cannot  be  known,  but  as  that  instrument  was  rejected,  the  bonds 
were  never  issued — and  that  was,  perhaps,  all  that  the  friends 
of  the  Ordinance  intended. 


CAN   CONVENTIONS   APPROPRIATE   MONEY?  405 

§  441.  Another  instance  of  this  kind  of  legislation  occurred  in 
the  Convention  of  1864  for  the  reconstruction  of  Louisiana. 
An  appropriation  of  twenty  thousand  dollars  was  made  by  it 
from  the  general  fund,  for  the  support  and  relief  of  charitable 
institutions,  to  be  paid  in  the  usual  manner  by  warrants  from 
the  auditor  or  the  treasurer,  in  favor  of  their  respective  man 
agers.  Afterwards  a  resolution  was  adopted,  directing  the 
payment  out  of  the  State  treasury  of  the  sum  of  ten  thousand 
dollars  for  expenses  incurred  "  in  the  formation  of  the  free  State 
of  Louisiana."  On  the  same  day,  upon  the  recommendation 
of  the  finance  committee,  it  was  resolved  to  draw  from  the  gen 
eral  fund  in  the  State  treasury  the  amount  necessary  for  the 
payment  of  members,  employes,  and  contingent  expenses  until 
the  end  of  the  session ;  also  to  pay  to  the  State  librarian,  for 
services  rendered  by  him  in  furnishing  books  and  documents  to 
the  Convention,  the  sum  of  five  hundred  dollars. 

In  reference  to  the  precedents  drawn  from  this  last  Conven 
tion,  it  should  be  noted  that  they  are  of  no  weight  at  all  by  rea 
son  of  the  exceptional  character  of  that  body.  That  Convention, 
like  those  which  followed  it  in  the  other  States  that  attempted 
to  secede  from  the  Union,  was,  as  we  have  already  seen,1  the 
creature  of  the  military  law,  and  so,  in  its  inception,  not  to  be 
ranked  as  legitimate.  It  was,  besides,  in  essential  character,  a 
provisional  government,  and  not  a  Constitutional  Convention. 
In  this  exceptional  character,  it  wielded  whatever  powers  it 
chose  to  assert,  subject  only  to  the  dictation  of  the  military 
commander,  being  in  fact  the  only  civil  government  existing  in 
the  State.  The  legislature  had  perished  along  with  the  other 
departments  of  the  government,  in  the  act  of  seceding,  so  that, 
if  there  were  funds  in  the  State  treasury,  there  was  no  civil 
authority,  save  the  Convention,  that  could  claim  the  right  to 
disburse  them.  The  analogy,  therefore,  was  close  between  the 
Louisiana  Convention  and  those  of  the  American  colonies,  to 
which  reference  has  been  made,  which,  while  they  exercised 
some  of  the  functions  of  Constitutional  Conventions,  were  sim 
ply  Revolutionary  Conventions,  and,  therefore,  the  former  can 
properly  furnish  no  precedents  to  bind  such  Conventions  as  are 
strictly  constitutional  bodies. 

Thus  far  of  the  power  of  Conventions  to  repeal  Acts  of  the 
legislature,  or  themselves  to  enact  ordinary  laws. 
l  See  ante,  §§  247-249. 


406  CAN   A   CONVENTION   ACT   AS    A   LEGISLATURE 

§  442.  2.  I  pass  now  to  the  second  class  of  questions  pro 
posed  for  discussion  in  this  chapter,  namely,  Can  a  Convention 
act  as  a  legislature  in  matters  by  the  Federal  Constitution  re 
quired  to  be  transacted  by  the  legislatures  of  the  several  States  ? 

There  are  two  cases : 

(a).  Can  a  Convention  assume,  as  a  legislature,  to  prescribe 
the  "  times,  places,  and  manner  of  holding  elections  for  Senators 
and  Representatives  "  in  Congress  ? 

(b).  Can  a  Convention  assume,  as  a  legislature,  to  ratify  pro 
posed  amendments  to  the  Federal  Constitution,  when  the  rati 
fication  is  required  by  Congress  to  be  made  by  the  State  legis 
latures  ? 

(a).  The  fourth  section  of  the  first  article  of  the  Federal  Con 
stitution  provides,  that  "  the  times,  places,  and  manner  of  hold 
ing  elections  for  senators  and  representatives  shall  be  prescribed 
in  each  State  by  the  legislature  thereof." 

In  the  Illinois  Convention  of  1862,  a  question  arose  in  relation 
to  the  power  of  that  body  to  personate  the  State  legislature, 
under  this  section.  Soon  after  the  result  of  the  census  of  1860 
was  announced,  the  legislature  of  Illinois  had  districted  the 
State  for  thirteen  members  of  Congress,  on  the  basis  of  that  an 
nouncement,  and  had  adjourned.  In  March,  1862,  while  the 
Convention  was  in  session,  an  Act  was  passed  by  Congress  al 
lowing  the  State  an  additional  representative.  An  election  for 
members  of  Congress  being  about  to  take  place  in  November 
of  that  year,  it  was  deemed  desirable,  if  possible,  to  correct  the 
erroneous  apportionment,  without  summoning  together  the  legis 
lature.  Accordingly  a  resolution  was  introduced  into  the  Con 
vention  instructing  the  judiciary  committee  to  inquire  whether 
that  body  had  power  to  establish  districts  for  the  election  of 
members  of  Congress.  Upon  that  committee  was  placed  the 
best  legal  talent  in  the  Convention,  and  a  report  was  promptly 
made,  maintaining  that  the  power  of  the  Convention  to  estab 
lish  districts  was  undoubted. 

§  443.  The  ground  taken  by  the  majority  of  the  committee 
was  simply  that  the  true  construction  of  the  clause  of  the  Con 
stitution  which  requires  that  "  the  times,  places,  and  manner  of 
holding  elections  for  members  of  Congress"  should  be  prescribed 
by  the  legislature,  was,  that  the  people  of  the  different  States 
should  have  the  right  to  prescribe  through  their  proper  repre- 


TO   DISTRICT  THE  STATE  FOB  MEMBERS  OP  CONGRESS  ?       407 

sentatives,  the  particulars  indicated  ;  that  the  ordinary  construc 
tion  of  the  clause  was  founded  upon  the  assumed  technical 
signification  of  the  word  "  legislature,"  according  to  which,  the 
clause  in  question  could  only  refer  to  the  General  Assembly ; 
that,  on  the  contrary,  the  word  "  legislature,"  from  its  derivation, 
construction,  and  general  use,  was  not  confined  in  its  meaning 
to  limits  so  narrow,  but  denominated  a  body  of  persons  having 
the  power  to  lay  down  laws,  —  in  common  acceptation,  to  make 
laws ;  that  it  was,  therefore,  properly  applied  to  any  body  having 
and  exercising  the  power  of  making  laws ;  that  the  Congress  of 
the  Revolution  was  a  legislature  ;  that  the  Convention  which 
framed  the  Federal  Constitution  was  the  first  legislature  which 
ever  convened  and  acted  in  America,  having  made  and  estab 
lished,  by  the  subsequent  approval  and  ratification  of  the  States, 
the  supreme  law  of  the  land  ;  that  in  organizing  new  States  out 
of  Territories,  the  Conventions  called  for  that  purpose  had  exer 
cised  this  power  without  question ;  that  the  Convention  of  Illi 
nois  was  a  legislature,  authorized  to  create  laws  which  might 
abolish  other  legislatures ;  change,  annul,  or  reestablish  existing 
laws ;  in  short,  was  superior  in  power,  in  the  act  of  making  laws, 
to  any  ordinary  legislature,  and  hence  might,  at  least,  do,  in  the 
way  of  changing  or  abrogating  the  Acts  of  a  former  legislature, 
whatever  a  subsequent  legislature  might  do. 

Upon  the  report  of  this  committee,  and  almost  without  de 
bate,  the  Convention  instructed  its  committee  on  Congressional 
apportionment  to  redistrict  the  State  at  once  for  members  of 
Congress.  This  was  done,  and  there  was  consequently  embod 
ied  in  the  Constitution  a  scheme  of  districts  satisfactory  to  the 
majority  of  the  Convention. 

§  444.  In  relation  to  the  arguments  advanced  by  the  commit 
tee,  it  is  worthy  of  note  — 

1.  That,  although,  as  stated  by  the  committee,  the  spirit  of 
the  clause  of  the  Federal  Constitution  in  question  doubtless  is, 
that  the  people  of  the  several  States  should  have  the  right  to 
determine  the  time,  place,  and  manner  of  electing  their  repre 
sentatives  in  Congress,  still  it  is  explicitly  required  by  that  clause 
that  the  legislatures  shall  be  the  bodies  by  which  that  determina 
tion  shall  be  made.  The  real  question  is,  what  is  meant  by  the 
term  "  legislature  ?  "  The  words  "  legislature  "  and  "  Conven 
tion  "  are  used  in  the  Federal  Constitution,  the  former  ten  times, 


408  CAN   A   CONVENTION   ACT   AS   A    LEGISLATURE 

and  the  latter  four  times.  The  signification  intended  by  the 
word  "Convention,"  it  is  impossible  to  mistake,  since  it  is  used 
only  in  reference  to  framing  or  ratifying  a  body  of  fundamental 
laws  for  the  United  States.  The  word  "  legislature  "  is  always 
preceded  by  the  article  "  the,"  as  importing  an  institution  well 
understood,  and  is  uniformly  coupled  with  the  term  "  State." 
Moreover,  from  the  context,  it  is  impossible  not  to  infer  that  the 
term  is  used  technically,  to  designate  the  ordinary  law-making 
power,  and  not  a  Convention,  or  other  body.  It  may  also  be 
noted,  that  whenever  reference  is  certainly  made  to  the  ordinary 
law-making  power,  the  term  "  legislature "  is  employed ;  and 
that  whenever  reference  is  certainly  made  to  that  body  of  per 
sons  whose  duty  it  is  to  frame  the  fundamental  law,  the  term 
"  Convention  "  is  employed. 

§  445.  2.  The  statement  of  the  committee,  that  the  Congress 
of  the  Revolution  was  a  legislature,  though  true,  is  exceedingly 
unfortunate  for  their  purpose.  The  Congress  of  the  Revolution 
constituted  a  provisional  government,  and  as  such  was  possessed 
of  not  only  legislative,  but  executive  and  judicial  powers ;  it 
was  precisely  such  a  body  as  the  Convention  Parliament  of 
1689  in  England,  composed  of  citizens  collected  irregularly, 
charged  with  the  duty  temporarily  of  protecting  and  governing 
the  nation  left  without  an  organized  government,  and  to  that 
end  authorized  to  exercise  such  powers  as  should  seem  to  them 
to  be  necessary.  A  body  of  a  similar  character,  so  far  as  its 
legal  status  is  concerned,  was  the  National  Convention  of 
France ;  though,  it  must  be  admitted,  that  assembly,  composed 
of  men  unpractised  in  public  affairs,  was,  in  point  of  political 
wisdom,  infinitely  inferior  to  both  the  Convention  Parliament 
and  the  Continental  Congress.  But  the  point  is,  that  they  were 
all  of  them  Revolutionary  Conventions,  wielding  provisionally 
all  powers  whatsoever.  It  is  worse  than  idle  to  compare  our 
Constitutional  Conventions  with  such  bodies.  Constitutional 
Conventions  are  not  governments  at  all ;  they  wield  no  adminis 
trative  powers,  and  of  such  as  are  denominated  legislative  pow 
ers,  they  wield  only  such  as  relate  to  the  organic  law,  and  in 
respect  to  that,  their  powers  are  limited  to  recommendations 
merely.  In  other  words,  the  Continental  Congress,  referred  to 
by  the  committee,  was  not  a  Convention,  in  the  sense  intended 
by  them,  at  all ;  and,  therefore,  no  inference  as  to  the  powers  of 


TO   DISTRICT   THE   STATE   FOB   MEMBERS   OF   CONGRESS?       409 

such  a  body  can  be  drawn  from  the  fact  that  that  Congress  did 
or  did  not  possess  particular  powers. 

§  446.  The  committee  say,  that,  in  organizing  new  States  out 
of  Territories,  the  Conventions,  called  for  that  purpose,  exercise, 
without  question,  the  power  of  apportioning  such  States  for 
members  of  Congress,  and  thence  infer  that  all  Conventions 
may  exercise  the  same  powers.  It  is  true,  that,  in  many  cases, 
such  has  been  the  practice.  There  being  as  yet  no  State,  and, 
of  course,  no  State  legislature,  unless  the  Convention  could 
make  a  temporary  arrangement  for  the  election  of  members  of 
Congress,  the  new  State  must,  after  its  admission  into  the 
Union,  be  unrepresented  in  that  body,  until  a  State  legislature 
could  be  elected  and  could  pass  the  necessary  laws,  —  a  condi 
tion  involving  often  a  considerable  delay.  In  such  cases,  accord 
ingly,  the  custom  has  been  for  the  Convention  to  anticipate  the 
action  of  the  legislature,  —  a  course  which,  on  account  of  its 
obvious  convenience,  has  been  commonly  acquiesced  in.  These 
cases,  however,  form  exceptions  to  a  rule  which  is  general,  —  that 
it  is  the  State  legislatures  which  apportion  their  several  States 
for  Congressional  elections.  I  have  failed  to  find  a  single  excep 
tion  to  that  rule  save  in  the  cases  of  Territories  seeking  to  be 
come  States,  or  of  States  standing  substantially  on  the  same 
footing  as  Territories.1 

Besides,  in  one  view  of  the  subject,  such  action  of  the  Terri 
tories,  taken  in  connection  with  that  of  Congress  following  it, 
involves  no  impropriety,  if  it  is  not  strictly  regular.  Imme 
diately  following  that  clause  of  the  Federal  Constitution  giving 
the  power  of  determining  the  "  times,  places,  and  manner  of 
electing  senators  and  representatives  "  to  the  State  legislatures, 
is  the  important  reservation,  "but  the  Congress  may  at  any 
time,  by  law,  make  or  alter  such  regulations,  except  as  to  the 
place  of  choosing  senators."  Hence,  having  the  power  to  make 
or  alter,  Congress  doubtless  might  ratify  such  regulations,  how 
ever  made ;  or,  if  a  State,  actual  or  inchoate,  were  in  such  a 
condition,  that  it  had  no  lawful  legislature,  Congress  might 

l  The  Louisiana  Reconstruction  Convention  of  1864,  which  stood  on  a  footing 
in  some  respects  similar  to  that  of  a  Territory  preparing  itself  for  admission  into 
the  Union,  apportioned  the  State  for  the  election  of  members  of  Congress.  We 
have  seen,  however,  that  that  body  was  a  revolutionary  one,  —  a  provisional  gov 
ernment,  —  erected  under  the  sanction  of  the  military  arm.  See  ante,  §§  247- 
249. 


410  CAN   A   CONVENTION   LIMIT   A   DISCRETION 

itself,  for  the  sake  of  convenience,  establish  them  by  its  direct 
action.  This  it  does,  in  substance,  by  anticipation,  in  those 
cases  in  which  it  accepts  and  admits  into  the  Union  Terri 
tories,  presenting  themselves  with  Constitutions  containing  the 
apportionments  referred  to. 

§  447  (b).  Similar  considerations  enable  us  to  dispose  of  the 
second  case  relating  to  the  power  of  a  Convention,  as  a  legis 
lature,  to  act  upon  proposed  amendments  to  the  Federal 
Constitution.  Article  V.  of  that  Constitution  provides,  that 
Congress,  whenever  two-thirds  of  both  houses  shall  deem  it 
necessary,  shall  propose  amendments  to  that  instrument,  or,  on 
the  application  of  the  legislatures  of  two-thirds  of  the  several 
States,  shall  call  a  Convention  for  proposing  amendments,  which 
in  either  case  shall  be  valid  as  parts  of  the  Constitution,  "  when 
ratified  by  the  legislatures  of  three-fourths  of  the  several  States, 
or  by  Conventions  in  three-fourths  thereof,  as  the  one  or  the 
other  mode  of  ratification  may  be  proposed  by  Congress." 

By  a  joint  resolution  of  Congress,  approved  March  2,  1861, 
an  amendment  was  proposed  to  the  Constitution  of  the  United 
States,  inhibiting  any  amendment  to  such  Constitution  which 
should  authorize  Congress  "  to  abolish  or  interfere  within  any 
State,  with  the  domestic  institutions  thereof,  including  that  of 
persons  held  to  labor  or  service  under  the  laws  thereof."  The 
mode  of  ratification  proposed  by  Congress  was  by  the  action 
of  "  the  legislatures  of  three-fourths  of  the  several  States."  The 
legislature  of  the  State  of  Illinois,  having  at  its  session  held  in 
1861  failed  to  ratify  tlnY  amendment,  the  Convention  of  that 
State,  of  1862,  attempted  to  supply  a  remedy.  After  a  discus 
sion,  in  which  the  difficulties  attending  the  assertion  of  the 
power  in  question  were  considered  on  constitutional  grounds, 
the  Convention,  by  a  decisive  vote,  passed  a  resolution  ratifying 
the  proposed  amendment. 

Respecting  this  action  of  the  Convention,  I  deem  it  unneces 
sary  to  say  more,  than  that  there  is  not,  in  my  judgment,  on  legal 
grounds,  a  shadow  of  reason  for  the  construction  given  to  the 
Constitutional  provision,  and  that  party  zeal  alone  could  have 
led  the  eminent  men  who  composed  that  body,  to  the  position 
assumed  in  the  discussion. 

§  448.  3.  The  last  practical  question  proposed  for  discussion, 
is  whether  a  Convention  has  power,  by  constitutional  regulation 


CONFIDED  TO  A  LEGISLATURE  BY  THE  FEDERAL  CONSTITUTION  ?     411 

or  otherwise,  to  limit  a  discretion  confided  to  a  State  legislature 
by  the  Constitution  of  the  United  States  ? 

This  question  arose  in  the  Massachusetts  Convention  of  1820, 
under  the  following  circumstances.  Mr.  Austin,  of  Boston,  in 
troduced  into  that  body  a  resolution  affirming  the  expediency 
of  electing  representatives  in  Congress  and  presidential  electors, 
in  districts  to  be  determined  by  the  legislature,  instead  of  by  gen 
eral  ticket,  as  it  is  called,  and  requiring  that  body,  immediately 
after  every  apportionment  of  representatives  by  Congress,  to  pro 
vide  by  law  for  so  electing  them.  By  the  second  section  of  the 
Federal  Constitution,  it  is  directed,  that  the  members  of  the  Na 
tional  House  of  Representatives  shall  be  chosen  "  by  the  people 
of  the  several  States,"  and  by  the  fourth  section,  that  "  the  times, 
places,  and  manner  of  holding  elections  for  senators,  &c.,  shall 
be  prescribed  in  each  State  by  the  legislature  thereof." 

By  the  mover  of  this  resolution,  it  was  not  denied  that  it 
was  by  the  legislature,  and  not  by  a  Convention,  that  the  times, 
places,  and  manner  of  electing  senators,  &c.,  were  to  be  deter 
mined  ;  but  he  contended  that  the  latter  had  a  right  to  limit  the 
former  in  the  exercise  of  its  discretion  ;  that  the  legislature  was 
bound  to  exercise  all  its  powers  under  the  direction  of  the  Con 
stitution,  and  that  the  people  had  at  the  same  time  the  right  to 
impose  upon  the  legislature  such  terms  and  conditions  as  they 
should  deem  advisable  ;  that  admitting  the  right  of  imposing 
the  particular  restriction  in  question,  the  expediency  of  it  was 
beyond  dispute ;  for,  it  was  said,  that  "  when  electors  and  repre 
sentatives  are  chosen  in  large  districts,  the  rights  of  the  minority 
are  destroyed.  It  is  only  by  dividing  the  State  into  small  por 
tions,  that  there  can  be  a  fair  expression  of  public  opinion."  1 

§  449.  On  the  other  hand,  Judge  Story  contended  that  the 
proposed  restriction  was  in  conflict  with  the  Federal  Constitu 
tion  ;  that  by  the  latter  instrument  a  discretion  as  to  the  choice 
of  electors  was  given  to  the  legislature ;  that  that  discretion  was 
unlimited,  and  yet  the  proposition  before  the  Convention  went 
directly  to  destroy  that  freedom  of  choice,  and  compelled  the 
legislature  to  resign  all  manner  of  choice  but  one ;  that  it  was 
bound  to  exercise  its  authority  according  to  its  own  views  of 
public  policy  and  principle  ;  but  that  the  proposition  in  question 
compelled  it  to  surrender  all  discretion ;  that  a  strong  objection 
1  Deb.  Mass.  Conv.  1820,  pp.  106-108. 


412  EXPRESS   POWERS   OF   CONVENTIONS. 

to  that  proposition,  moreover,  was  that  if  it  should  be  adopted  by 
the  Convention,  and  ratified  by  the  people,  the  legislature  would 
probably  follow  the  rule  presented  by  the  proposed  amendment; 
that  the  members  of  the  legislature  were  under  oath  to  support 
the  Constitution  of  the  State  ;  that  they  were  also  under  oath 
to  support  the  Constitution  of  the  United  States ;  but  would  it 
not,  it  was  asked,  be  a  violation  of  their  oaths  to  bind  them 
selves  not  to  choose  representatives  in  any  manner  that  the  Con 
stitution  of  the  United  States  allowed,  except  that  stated  in  the 
amendment?  As  to  the  question  of  policy,  he  admitted  that 
a  uniform  mode  of  choosing  representatives  and  electors  by 
districts  throughout  the  United  States,  would  be  a  great  improve 
ment  in  the  National  Constitution  ;  but  he  urged  that  the  question 
before  the  Convention  was  not  of  that  nature  ;  that  it  went  to 
limit  Massachusetts  to  a  particular  mode  of  choice,  leaving  the 
rest  of  the  United  States  free  to  adopt  any  other,  the  result  of 
which  would  be,  on  the  most  important  occasions,  to  deprive 
that  State  of  all  the  influence  to  which  her  talents,  character, 
and  numbers  entitled  her. 

In  these  views,  Mr.  Webster,  also  a  member  of  the  Conven 
tion,  coincided,  and  the  proposed  amendment  was  not  adopted.1 

§  450.  II.  The  preceding  sections  of  this  chapter  have  been 
devoted  to  a  delineation  of  the  powers  of  Conventions,  resulting 
from  what  may  be  called  their  external  relations  ;  that  is,  their 
powers  with  reference  to  the  sovereign  society  at  large,  and  to 
the  government  of  the  State,  both  in  general,  and  as  divided 
into  several  distinct  departments.  It  remains  now  to  inquire 
what  powers  belong  to  them  by  reason  of  their  internal  rela 
tions,  having  reference,  for  example,  to  the  perfecting  of  their 
organization,  to  the  maintenance  of  discipline  over  their  mem 
bers  or  over  strangers,  and  to  the  prolongation  or  perpetuation 
of  their  existence. 

The  powers  of  Conventions,  considered  from  this  point  of 
view,  are,  first,  such  as  are  expressly  given  by  the  Act  under 
which  they  assemble  ;  or,  secondly,  such  as  are  implied  as  being 
necessary  to  the  exercise  of  these  express  powers,  or  as  inci 
dental  to  the  complete  execution  of  their  commission. 

§  451.  First.  With  respect  to  powers  expressly  given,  it  is 
unnecessary  to  speak  at  much  length.  In  general,  a  power  ex- 
1  See  Deb.  Mass.  Conv.  1820,  pp.  109-112. 


IMPLIED   POWERS   OP   CONVENTIONS.  413 

pressly  granted  to  a  Convention  by  a  legislative  Act  or  by  a 
Constitution,  is  a  power,  the  right  to  exercise  which  cannot  be 
denied  to  it.  Whether  this  rule  is  one  whose  application  is 
universal,  is  a  question  of  some  delicacy  which  may  be  worthy 
of  a  short  examination.  To  ascertain  whether  the  rule  has 
limits,  an  extreme  case  may  be  put.  Let  us  suppose,  that  in 
calling  a  Convention,  the  legislature  has  authorized  or  required 
it  to  enact  or  to  recommend  measures  subversive  —  1,  of  the 
laws  of  morality ;  or,  2,  of  the  guaranties  of  the  public  liberties, 
not  extending,  however,  to  the  abrogation  of  republican  forms. 
Would  the  Convention  have  power  —  not  would  it  be  obliged, 
but  would  it  be  competent  —  to  obey?  1.  As  to  measures 
mala  in  se^  the  answer  is,  that  the  Convention  would  derive  from 
such  an  Act  no  power  whatever,  for  no  body  of  men  can  give 
to  another  power  to  do  what  neither  can  rightfully  do  indepen 
dently,  —  power  in  extent  greater  than  is  possessed  by  the  giver. 

§  452.  2.  More  difficulty  exists  in  relation  to  measures  of  the 
second  class,  which,  in  general,  would  be  merely  mala  prohibit^ 
though,  doubtless,  some  of  them,  by  destroying  safeguards  long 
recognized  as  essential  to  liberty,  might  be  considered  as  tainted 
with  positive  immorality.  But  assuming  that  all  such  measures 
would,  on  a  priori  moral  grounds,  be  indifferent,  would  a  Con 
vention  then  be  competent  to  enact  or  recommend  them  ?  The 
answer  clearly  must  be  in  the  affirmative.  Thus,  were  a  legis 
lature  to  require  or  authorize  a  Convention  in  the  Constitution 
it  should  frame  to  repeal  the  entire  Bill  of  Rights,  or  to  insert 
clauses  empowering  the  legislature  to  establish  a  censorship  of 
the  press,  or  the  judiciary  to  issue  general  warrants,  although 
the  measures  indicated  would  endanger  some  of  our  most  valued 
rights,  yet  not  being  necessarily  incompatible  with  the  existence 
of  republican  government,  or  within  the  range  of  direct  Federal 
prohibition,  they  would  not  be  beyond  the  competence  of  the 
Convention. 

§  453.  Secondly.  It  is  the  implied  or  incidental  powers, 
claimed  by  or  attributed  to  Conventions,  that  are  of  principal 
interest  in  this  discussion  ;  powers,  that  is,  involved  in  the 
general  grant  of  authority  to  assemble  in  Convention  to  revise 
the  fundamental  law.  Conceiving  of  Conventions,  then,  as  we 
must,  as  mere  committees,  what  powers  have  they  resulting  by 
implication  from  their  general  character  or  from  the  nature  of 


414      POWERS   OP   CONVENTIONS   RESPECTING   THEIR   ORGANIZATION. 

their  business  in  relation  to  the  points  indicated  ?  The  general 
rule  is  undoubtedly  this  :  —  as  Conventions  are  commonly  nu 
merous  assemblies,  containing,  in  most  cases,  the  same  number 
of  members  as  the  State  legislatures,  they  are  possessed  of  such 
powers  as  are  requisite  to  secure  their  own  comfort,  to  protect 
and  preserve  their  dignity  and  efficiency,  and  to  insure  orderly 
procedure  in  their  business.  For  the  attainment  of  these  ends, 
they  are  not  without  the  authority  possessed  by  agents  in  gen 
eral,  and,  in  my  judgment,  they  are  possessed  of  no  other  or 
greater.  Thus,  they  must  have  a  suitable  hall,  adequately 
warmed  and  lighted  ;  and,  though  the  Acts  calling  them  were 
silent  on  the  point,  they  would  unquestionably  have  power  to 
engage  one,  and  to  pledge  the  faith  of  the  State  for  the  rental 
thereof.  So,  there  can  be  no  doubt,  a  Convention  would  be  au 
thorized  to  appoint  such  officers  and  servants  as  the  custom  of 
public  assemblies  in  free  communities  has  sanctioned,  or  as  may 
seem  under  the  circumstances,  to  be  necessary. 
,  §  454.  In  respect  to  a  president  and  secretary  or  secretaries, 
there  can  be  no  question.  The  convenience  of  members  and  the 
despatch  of  business  would  point  also  to  messengers  or  pages 
as  requisite.  The  same  may  be  said  perhaps  of  one  or  more 
door-keepers,  since,  if  the  hall  where  the  session  is  held,  were 
accessible  to  everybody,  at  all  hours,  the  functions  of  the  Con 
vention  might  be  seriously  interrupted,  and  its  dignity  insulted. 
With  respect  to  a  sergeant-at-arms,  some  doubt  exists.  It  is  a 
universal  practice  in  Conventions  to  appoint  such  an  officer, 
and  the  right  of  doing  so  for  certain  purposes  cannot  be  denied. 
The  doubt  arises  in  relation  to  his  powers,  which  of  course  in 
volves  the  competence  of  those  bodies  to  vest  him  with  them. 
A  sergeant-at-arms  is  defined  to  be  "  an  officer  who  executes  the 
commands  of  the  house  in  apprehending  delinquents  or  offend 
ers,  and  in  preserving  order,"  &C.1 

As  to  one  of  these  functions,  that  relating  to  the  preservation 
of  order,  some  officer  charged  therewith  would  doubtless  be  neces 
sary  in  any  assembly  ;  but  if  it  be  true,  as  we  shall  attempt 
to  show  hereafter,  that  Conventions  have  no  magisterial  powers 
whatever  beyond  those  possessed  by  every  public  meeting,  it  is 
doubtful  whether  a  sergeant-at-arms  is  not  a  useless  piece  of 
ostentation  in  those  bodies.  In  the  case  of  a  legislature,  that 
1  Worcester's  Diet,  in  verb.  "  Sergeant." 


POWER   WITH   RESPECT   TO   STATIONERY,   PRINTING,   ETC.       415 

officer  discharges  all  the  functions  indicated  by  the  definition. 
Moreover,  the  name  sergeant-at-arms  was  undoubtedly  derived 
from  the  sterner  duties  of  his  office,  involving  the  arrest  of  de 
linquents,  whether  members  of  the  body  or  strangers.  For  the 
present,  however,  I  shall  assume  that  the  sergeant-at-arms  of  a 
Convention  lacks  the  function  which  gives  to  the  name  of  the 
corresponding  officer  of  a  legislature  its  appropriateness,  and  is 
a  functionary,  like  a  secretary  or  door-keeper,  destitute  of  proper 
police  powers.  In  his  limited  capacity,  however,  his  duties  are 
important.  "  He  attends  upon  the  Convention,  maintaining 
order  among  those  present,  serving  its  processes  and  executing 
its  orders,  giving  notice  to  the  presiding  officer  of  persons  at 
tending  with  messages,  or  other  communications ;  he  has  the 
appointment  and  supervision  of  the  various  officers  of  his  de 
partment —  and,  as  housekeeper  of  the  house,  has  charge  of  all 
its  committee  rooms  and  other  buildings  during  its  sitting." l 
In  short,  he  is  the  principal  executive  officer  of  the  Conven 
tion. 

How  this  officer  came  to  be  called  a  sergeant-at-arms,  with 
powers  so  inferior  to  those  indicated  by  his  title  as  well  as  to 
those  wielded  by  his  namesake  in  the  legislature,  is  shown  by 
the  origin  of  Conventions.  We  have  seen  that  the  first  Conven 
tion,  the  type,  in  some  respects,  of  all  that  have  followed,  was 
a  Parliament  irregularly  called  and  constituted  —  a  revolutionary 
assembly,  modelled  after  the  legitimate  legislative  branch  of  the 
government,  with  the  same  officers,  and,  in  general,  the  same 
modes  of  proceeding.  Of  this  original  perversion  of  a  Parlia 
ment,  called  the  "  Convention  Parliament,"  our  earliest  Conven 
tions,  during  the  Revolution,  were  close  imitations,  both  in 
structure  and  organization  ;  and  when,  upon  the  foundation  of 
our  constitutional  system,  those  exceptional  and  revolutionary 
bodies  were  transformed  and  introduced  into  it  as  part  of  the 
regular  constitutional  apparatus,  their  scheme  of  officers  and 
rules  and  modes  of  proceeding  were  also  adopted,  without  sub 
stantial  modification. 

§  455.  The  power  of  a  Convention  to  supply  its  members 
with  stationery  is  perfectly  clear  j  but  in  reference  to  the  public 

i  Cushing's  Law  and  Prac.  of  Legist.  Assemb.,  2d  ed.,  p.  131.  The  description 
quoted  above  is  adapted  from  that  given  by  Gushing  of  the  sergeant-at-arms  of  a 
legislature. 


416      POWER   WITH   RESPECT   TO   REPORTS   OF   THEIR   DEBATES. 

journals  there  has  been  some  doubt,  though  upon  precedent  as 
well  as  upon  principle,  the  power  must  probably  be  admitted. 
It  has  been  the  practice  of  nearly  all  the  Conventions  held  in 
the  present  century,  to  order,  as  well  for  the  use  of  the  members, 
as  for  distribution  among  their  constituents,  one  or  more  news 
papers  for  each  member  during  the  session.  The  reason  usually 
assigned  for  this  expenditure  is,  that  it  is  important  there  should 
be  a  direct  and  constant  communication  between  the  people 
and  their  delegates  in  the  Convention,  in  order  that  the  latter 
may  as  perfectly  as  possible  reflect  the  public  will.  If  all  that 
is  proposed  and  discussed,  be  submitted  immediately  to  the 
people,  with  the  reasons  for  and  against,  a  thing  possible  only 
through  the  medium  of  the  press,  the  delegates  would  be  guided 
and  moulded  by  a  reflex  wave  of  sentiment  which  would  be 
fresh  and  unmistakeable.  Every  thing  which,  within  reasonable 
limits,  conduces  to  that  end,  and  at  the  same  time  conforms  to 
the  usages  and  is  not  foreign  from  the  purpose  and  nature  of 
the  Convention  is,  by  a  liberal  construction  of  its  powers,  au 
thorized. 

§  456.  The  same  principle  applies  to  the  case  of  phonographic 
reports  and  printing  for  the  Convention.  It  would  be  a  most 
niggardly  policy  which  should  refuse  the  expenditure  necessary 
to  the  preservation  of  most  full  and  accurate  reports  of  its  de 
bates  and  proceedings.  Upon  this  subject,  however,  there  has 
been  very  great  difference  of  views  in  different  Conventions. 
In  many  of  the  States,  volumes  have  been  published,  containing 
both  the  journals  and  the  debates  of  all  their  Conventions.  In 
others,  the  subject  seems  not  to  have  been  regarded  as  of  any 
consequence  whatsoever  ;  and  what  little  has  been  preserved 
has  been  owing  to  the  private  enterprise  of  the  newspaper  press. 
The  result  is,  that  the  memorials  of  the  most  important  public 
bodies  ever  assembled  in  those  States,  are  often  very  meagre, 
and  more  often  confused  and  inaccurate.  Such  a  policy  is 
"  penny  wise  and  pound  foolish."  In  after  years,  when  it  has 
become  impossible  to  replace  what  has  been  lost,  more  enlight 
ened  public  opinion  commonly  finds  cause  to  regret  a  paltry 
economy  which  deprives  history  of  its  most  important  data.  It 
should  be  remembered,  that  our  Conventions  lay  the  foundations 
of  States,  many  of  which  are  to  rival  the  greatness  and  glory 
of  Rome,  of  England,  and  of  France.  In  a  hundred  years  from 


CHARACTER   AND   VALUE    OF   CONVENTION   DEBATES.  417 

now,  what  treasures  would  they  not  expend,  could  they  purchase 
therewith  complete  copies  of  their  early  constitutional  records  — 
documents  standing  to  their  several  organizations  in  the  same 
relation  as  would  the  discussions  of  those  ancient  sages  who 
framed  the  Twelve  Tables  of  the  Roman  law,  to  the  Republic  of 
Rome. 

§  457.  And  here  I  may  be  indulged  in  a  remark  or  two  in 
relation  to  the  character  and  value  of  the  debates  of  our  Con 
ventions. 

Doubtless,  to  the  listener,  few  public  assemblies  would  exhibit 
so  little  that  is  attractive  as  those  bodies.  There  are,  of  course, 
in  them,  much  garrulity  and  much  ignorance,  and  the  topics  of 
discussion  are  abstract  and  unfamiliar.  Accordingly,  the  pub 
lished  conventional  debates  are  dreary  wastes  of  platitudes, 
dotted  here  and  there  with  gems  of  wisdom  and  eloquence.  So 
well  is  their  prevailing  character  known,  that  in  some  of  the 
later  Conventions  particular  pains  have  been  taken  to  discour 
age  speech-making  by  the  establishment  of  rules  limiting  debate 
—  prominent  delegates  in  one  case,  where  there  were  no  rules, 
directing  the  reporters  to  omit  the  speeches  they  themselves 
should  make.  But  I  am  persuaded  that  a  diffuse  style,  tainted 
in  every  period  with  rhetorical  vices,  is  not  incompatible  with 
a  high  degree  of  political  wisdom,  and  that  all  such  attempts, 
however  well-meant  and,  on  grounds  of  taste,  deserving  of  gen 
eral  sympathy,  are  ill-judged  and  harmful.  When  measures  are 
under  deliberation,  which  rest  on  principles  alone,  the  opinions 
of  commonplace  men  are  frequently  of  as  much  value,  and  are 
likely  to  be  quite  as  original,  as  those  of  the  more  gifted  debaters. 
At  all  events,  it  is  eminently  useful  to  a  public  assembly  to  listen 
to  the  observations  upon  any  subject,  of  many  men  of  various 
callings,  and  of  unequal  attainments.  If  their  thoughts  are  not 
generally  profound,  they  are  often  suggestive  ;  and,  in  a  delib 
erative  body,  it  is  not  so  much  the  remarks  of  those  who  speak, 
as  the  reflections  upon  them  of  those  who  listen,  which  ripen 
its  measures.  The  truth  of  this  is  seen  in  perusing  the  printed 
reports  of  the  debates  in  our  Conventions.  One  cannot  go 
through  the  discussion  of  any  important  measure,  in  which  men 
of  ordinary  minds  participated,  without  being  surprised  to  find 
fresh  light  constantly  flowing  over  the  subject  from  speeches, 
which  not  all  the  polishing  of  the  reporter  could  make  other- 

27 


418  POWER   WITH   RESPECT   TO   PRINTING. 

wise  than  offensive  to  a  cultivated  taste.  In  my  judgment, 
therefore,  it  is  unwise,  where  questions  relating  to  the  funda 
mental  law,  always  more  or  less  abstract,  are  under  discussion, 
to  limit  or  discourage  debate  to  the  same  extent  that  might  be 
advisable  in  a  legislature,  in  which  the  measures  proposed  are 
commonly  such  as  carry  their  policy  or  impolicy  upon  their  faces  ; 
or,  at  least,  in  reference  to  which,  if  a  mistake  be  made,  the 
consequences  are  not  so  disastrous  or  so  lasting.  Hon.  Henry 
A.  Wise  is  said  to  have  declared  in  the  Virginia  Convention  of 
1850,  that  "  he  would  not  give  a  fig  for  any  Constitution  that 
was  framed  in  less  than  twelve  months,"  —  a  remark  involving 
some  exaggeration,  but  indicating  a  much  more  proper  apprecia 
tion  of  the  importance  of  mature  deliberation  in  organic  legis 
lation  than  the  contrary  extreme.  There  are  no  greater  ene 
mies  to  their  respective  States  than  those  foolish  delegates  who 
are  no  sooner  seated  in  Convention  than  they  begin  to  clamor 
for  less  speech-making  and  more  voting,  with  a  view  to  an  early 
adjournment  and  a  light  bill  for  Convention  expenses.1 

§  458.  In  relation  to  the  printing  for  the  Convention,  the  case  is 
very  clear.  If  the  Act  calling  the  body  provides  for  it,  or  requires 
it  to  be  done  in  a  particular  manner  or  by  a  designated  person, 
or  limits  it  in  amount  or  in  cost,  doubtless  the  Act  should  be 
obeyed.  But,  unless  thus  restricted,  the  power  of  the  body  to 
order  its  printing  to  be  done,  is  as  undoubted  as  to  engage  a 
hall  or  the  requisite  executive  officers.  The  only  alternative  is, 
the  employment  of  secretaries  enough  to  furnish  written  copies 
of  all  papers  and  documents  used  in  the  course  of  its  business. 
This  would  be  possible,  and  such  provision  would,  after  a  sort, 
answer  the  purpose.  But  it  is  certain,  that  the  measures  pro 
posed  would  be  neither  so  well  understood  nor  so  rapidly  ma 
tured,  if  thus  presented,  as  if  they  were  printed.  To  this  may 
be  added,  that  the  expense  of  printed  would  be  much  less  than 
of  written  copies,  and  that  the  length  of  the  session  would 
probably  be  reduced  by  the  use  of  them.  The  employment, 
then,  of  printed  matter,  being  clearly  within  the  power  of  the 
Convention,  as  incident  to  the  speedy  and  convenient  execution 
of  its  commission,  the  extent  of  it  rests  in  the  discretion  of  that 

l  On  this  subject,  see  the  excellent  remarks  of  Hon.  Mr.  Sergeant,  President 
of  the  Pennsylvania  Convention  of  1837,  in  Deb.Penn.  Conv.  1837,  Vol.  I.  pp. 
304,  305. 


POWER    WITH   RESPECT   TO    THE   MAINTENANCE   OP   ORDER.       419 

body,  and  it  can  bind  the  government,  within  reasonable  limits, 
by  its  contracts  therefor. 

§  459.  A  Convention  having  provided  itself  with  the  officers 
needed  to  do  or  to  expedite  its  work,  its  attention  would  be  next 
directed  to  the  subject  of  maintaining  order  in  the  transaction 
of  its  business,  and  in  the  conduct  of  its  members.  For  this 
purpose,  rules  of  order  are  necessary.  There  is  sometimes  in 
serted  in  the  Act  calling  the  Convention,  a  power  to  establish 
such  rules  as  should  be  deemed  requisite  ;  but,  without  such  a 
clause,  a  Convention  would  clearly  be  authorized  so  to  do.  It 
is  usual,  before  rules  have  been  reported  by  the  special  committee 
for  that  purpose,  to  adopt  temporarily  those  of  the  last  Conven 
tion,  or  of  the  last  State  House  of  Representatives.  In  the 
absence  of  such  a  vote,  it  has  been  said,  that  the  lex  parlia- 
mentaria,  as  laid  down  in  the  best  writers,  is  in  force.  If  by 
this  is  meant,  that  the  maxims  of  common  sense,  having  refer 
ence  to  the  protection  of  the  rights  of  minorities,  to  the  preser 
vation  of  order,  and  to  the  speedy  transaction  of  the  business  in 
hand,  as  the  same  are  determined  by  the  experience  of  public 
bodies,  are  to  be  taken  as  a  guide,  the  proposition  may  be  ac 
cepted,  since  the  lex  parliamentaria  is  but  a  body  of  practical 
rules  founded  on  those  very  maxims.  However  that  may  be,  it 
is  undeniable  that  that  law  remains  in  force  only  at  the  discre 
tion  of  the  Convention.  It  may  at  any  time  be  abrogated,  partly 
or  wholly,  though  it  is  certain  that,  if  abrogated,  there  could 
not  be  substituted  for  it  a  system  which,  in  its  leading  princi 
ples,  should  be  contrary  to  the  spirit  of  that  law.  So  far  as  it 
should  be  so,  it  would  operate  as  a  device  either  to  fetter  the 
Convention  in  the  exercise  of  its  unquestioned  powers,  or  to  rob 
of  their  rights  a  minority  of  its  members.  It  is  not  my  purpose 
to  inquire  farther  into  the  nature  or  extent  of  the  rules  of  order 
which  it  is  in  the  power  of  Conventions  to  adopt,  but  I  pass  to 
a  question,  not  unrelated  to  that  inquiry,  though  of  vastly  greater 
importance,  namely,  whether  Conventions  have  power  to  arrest 
or  to  punish  for  offences  committed  against  themselves  or  against 
their  members,  and  to  what  extent  ? 

§  460.  This  question  may  be  considered  in  reference 

1.  To  offences  committed  by  their  own  members,  in  their  own 
presence  ;  and 

2.  To  offences  committed   by  strangers,  outside  their  walls, 
including  the  power  to  compel  obedience  to  their  mandates. 


420      POWER   WITH   RESPECT   TO    THE   MAINTENANCE   OF   ORDER. 

Before  proceeding  to  consider  these  questions,  however,  I  shall 
premise  a  few  words  in  relation  to  the  general  principles  which 
limit  or  determine  the  power  of  Conventions  in  this  regard. 

As  a  Convention  is  not  a  legislature,  though  a  body,  by  dele 
gation,  exercising  some  legislative  functions,  but  of  so  limited 
and  subordinate  a  character  as  to  entitle  it  to  rank  only  as  a 
legislative  committee,  it  cannot  do,  even  for  its  own  defence, 
acts  within  the  competence  only  of  a  legislature,  or  of  a  body 
with  powers  of  definitive  legislation.  It  can  do,  or  authorize 
to  be  done,  such  things  only  as  every  assemblage  of  citizens  is 
competent  to  do,  as  being  necessary  to  the  enjoyment  of  the 
right  of  freemen  peaceably  to  assemble,  guaranteed  by  our  Con 
stitutions.  These  would  differ  in  different  circumstances.  If 
a  mob  were  to  enter  the  hall  of  a  Convention  and  seek  to  over 
awe  it,  the  body  would  doubtless  be  authorized  to  eject  it,  if 
practicable  without  a  breach  of  the  peace.  On  the  other  hand, 
were  a  riotous  assemblage  to  gather  in  the  vicinity  of  a  Conven 
tion,  threatening  its  members  with  bodily  harm,  or  assailing  them 
with  abusive  epithets,  it  is  conceived  that  the  body  would  have 
no  power  to  disperse  it,  or  to  arrest  or  otherwise  punish  the  per 
sons  composing  it  —  at  most,  no  greater  power  than  would  be 
possessed  by  any  citizen  or  body  of  citizens.  Its  duty  would 
be  to  call  upon  the  constituted  authorities  forming  the  govern 
ment  of  the  State.  It  is  true,  cases  may  be  imagined  in  which 
such  a  rule  would  place  Conventions  at  the  mercy  of  the  popu 
lace,  the  government  being  unable  or  unwilling  to  interfere  to 
vindicate  the  rights  of  those  bodies.  But  those  would  be  ex 
treme  cases,  only  existing  where  revolutions  were  impending. 
The  liability  to  be  so  interrupted  is  shared  by  Conventions  with 
all  civic  gatherings  for  social  or  political  purposes.  It  would 
not  be  pretended,  that,  because  the  latter  are  liable  to  be  dis 
turbed  by  evil-disposed  persons,  they  are  authorized  to  exercise 
general  police  powers.  Why  then  attribute  those  powers  to  the 
former  ?  The  laws  are  equally  open  to  both,  and  there  are,  ever 
vigilant  and  ever  ready,  administrative  officers  charged  to  apply 
those  laws  to  preserve  the  peace,  and  to  give  to  every  citizen, 
whatever  his  function,  that  protection  which  shall  enable  him  to 
exercise  it. 

§  461.  It  may  be  said,  that  legislatures  wield  powers  much 
more  extensive  than  those  to  which  we  seek  thus  to  limit  Con- 


POWER   TO    DISCIPLINE   THEIR   OWN   MEMBERS.  .     421 

ventions,  and  it  may  be  asked,  Why,  if  those  powers  are  deemed 
necessary  to  the  former,  they  should  be  less  so  to  the  latter  ?  The 
answer  is,  because  the  former  possess  them.  If  they  exist  any 
where  in  the  government,  it  is  enough ;  and  not  only  so,  but  the 
fact  that  they  exist  in  one  department  or  agency,  is  evidence 
that  they  do  not,  and  a  reason  why  they  should  not,  exist  else 
where. 

So,  the  inference  that  Conventions  ought  to  have  within  them 
selves  all  the  powers  necessary  for  any  emergency  of  violence 
or  sedition,  because  our  courts  of  justice  and  our  corps  of 
administrative  officers  have  authority  to  vindicate  their  own 
dignity  and  independence,  is  wholly  unauthorized.  Not  to 
mention  that  those  bodies  are  largely  dependent  on  our  legisla 
tures  for  the  measures  most  effectual  to  protect  them  from  insult 
and  violence,  they  are  radically  different  from  Conventions  — 
they  are  political  agencies  in  the  actual  exercise  of  functions  of 
government.  It  is  proper  that  they  should  be  vested  with  orig 
inal  powers  of  self-protection,  since  otherwise  there  could  not 
exist  that  independence  of  each  other  in  which  alone  safety 
would  be  possible.  The  three  ordinary  departments  of  a  gov 
ernment  need  to  be  armed  for  self-defence  against  each  other, 
at  all  points,  because  their  spheres  of  action  are  conterminous, 
and  they  stand  ever  in  each  other's  presence.  Not  so  with  Con 
ventions,  in  relation  to  other  State  agencies ;  they  are  occasional, 
exceptional,  and  subaltern  assemblies,  charged  with  a  special 
and  limited  function,  and,  therefore,  have  far  less  need  of  the 
powers  indicated  than  either  of  those  departments ;  or  if  those 
powers  should  be  thought  to  be  indispensable  to  their  safety  or 
efficiency,  they  must  be  wielded  and  exercised  by  the  govern 
mental  agencies  in  which  our  Constitutions  have  vested  them. 

§  462.  1.  The  power  of  a  Convention  to  discipline  its  own 
members  for  offences  committed  in  its  presence  is  undoubted, 
and  of  considerable  extent.  The  order  and  dignity  of  public  de 
liberative  bodies  may,  in  many  ways,  be  so  assailed  as  seriously 
to  interfere  with  the  progress  of  business,  if  not  wholly  to  inter 
rupt  it,  yet  without  the  commission  of  any  misdemeanor  for 
which  the  offenders  would  be  amenable  to  the  laws.  A  Conven 
tion,  having  no  power  to  make  laws  giving  the  magistrates  juris 
diction  of  such  offences,  unless  it  could,  by  sanctions  of  its  own, 
enforce  its  rules  for  the  preservation  of  order,  it  would  be  at  the 


422  POWER   TO    DISCIPLINE   THEIR   OWN   MEMBERS. 

mercy  of  such  members  as  chose  to  do  the  work  of  violence, 
but  to  do  it  in  such  a  manner  as  to  elude  the  penalties  for  a 
breach  of  the  peace.  To  prevent  this  is  the  principal  object  of 
rules ;  and  every  public  assembly,  by  its  very  nature,  must  have 
power  to  make  and  to  enforce  them  in  some  modes  appropriate 
to  its  own  Constitution.  To  Conventions,  however,  it  must  be 
admitted,  the  range  of  sanctions  is  not  very  wide.  For  minor 
offences,  it  would  be  confined,  probably,  to  reprimand,  and  for 
the  more  heinous,  to  expulsion  from  the  body  ;  or,  in  cases  of 
actual  violence  to  arrest  and  tradition  to  the  public  authorities. 
Power  to  this  extent  I  conceive  to  be  indispensable  to  the  exist 
ence  of  any  deliberative  assembly ;  and,  without  assuming  the 
character  of  a  legislature,  with  power  to  create  and  to  invest 
officers  and  tribunals  with  jurisdiction  to  punish  offences,  I  can 
imagine  it  possessed  of  no  greater.  The  power  to  arrest  an 
offender,  in  the  case  supposed  of  actual  violence,  would  involve 
that  of  safely  keeping,  and,  if  necessary,  of  confining  him  until 
he  could  be  delivered  to  the  officers  of  the  law.  So,  the  power 
to  expel  a  member  would  carry  with  it  that  of  suspending,  which 
is  less,  or  of  suspending  with  forfeiture  of  pay,  temporarily  or 
altogether,  according  to  the  degree  of  the  offence.  But  the 
power  could  not  be  claimed,  in  the  former  case,  to  imprison  as 
a  punishment,  or  for  a  longer  time  than  should  be  necessary  to 
secure  the  arrested  member  until  he  could  be  transferred  to  the 
magistrates,  on  complaint  regularly  made  ; 1  or,  in  the  latter,  to 
pass  from  a  forfeiture  of  pay  (if  that  be  regarded  as  allowable) 
to  the  imposition  of  pecuniary  mulcts. 

§  463.  In  reference  to  the  question  of  punishing  offences  by 
forfeiture  of  pay,  if  within  the  competence  of  a  Convention  at 
all,  its  action  would  be,  like  its  proceedings  in  general,  recom 
mendatory,  and  not  final.  By  directing  its  president  or  other 
proper  officer  to  withhold  from  a  delinquent  his  certificate,  a 
Convention  would  make  it  impossible  for  him  to  draw  his  pay, 
unless  it  were  specially  awarded  to  him  by  a  subsequent  legisla 
ture. 

§  464.   The  offences  by  which  members  may  subject  them- 

1  To  our  legislatures,  our  Constitutions  sometimes  expressly  give  power  to  im 
prison  as  a  punishment  for  offences,  but  without  such  express  provision  they  are 
understood  to  possess  the  power,  and  it  is  the  punishment  commonly  resorted  to 
by  those  bodies  in  cases  requiring  some  degree  of  severity.  See  Cushing's  Law 
and  Pract.  of  Legisl.  Assemb.,  p.  267. 


POWER   OF   CONVENTIONS   TO   DISCIPLINE   STRANGERS.         423 

selves  to  whatever  power  of  discipline  a  Convention  possesses, 
are  of  various  kinds,  not  differing  materially  from  those  that  may 
occur  in  a  legislature,  which  have  been  described  by  Gushing 
as  follows :  — 

"  Members  may  be  guilty  of  misconduct,  either  towards  the 
assembly  itself,  towards  one  another,  or  towards  strangers.  Mis 
conduct  of  members  towards  the  assembly,  besides  being  the 
same  in  general  as  may  be  committed  by  other  persons,  consists 
of  any  breaches  of  decorum  or  order,  or  of  any  disorderly  con 
duct,  disobedience  to  the  rules  of  proceeding,  neglect  of  attend 
ance,  etc. ;  or  of  any  crime,  misdemeanor,  or  misconduct,  either 
civil,  moral,  or  official,  which,  though  not  strictly  an  attack  upon 
the  house  itself,  is  of  such  a  nature  as  to  render  the  individual 
a  disgrace  to  the  body  of  which  he  is  a  member.  Misconduct 
of  members  towards  each  other  consists  of  insulting  remarks  in 
debate,  personal  assaults,  threats,  challenges,  etc.,  in  reference 
to  which,  beside  the  ordinary  remedies  at  law  or  otherwise,  the 
assembly  interferes  to  protect  the  member  who  is  injured,  in 
sulted,  or  threatened.  Offences  by  members  towards  other  per 
sons,  of  which  the  assembly  has  cognizance,  consist  only  of 
injurious  and  slanderous  assertions  ;  either  in  speech  or  by  writ 
ing,  which,  as  there  is  no  other  remedy,1  the  assembly  itself,  if 
it  thinks  proper,  takes  cognizance  of,  and  punishes." 2 

§  465.  2.  In  relation  to  the  power  of  a  Convention  to  vindi 
cate  its  safety  or  its  dignity  by  disciplining  strangers,  there  is 
greater  difficulty.  The  right  to  exercise  such  a  power  must  be 
inferred  either  from  the  fact  that  it  is  held  and  exercised  by  legis 
latures,  or  that  it  is  absolutely  necessary  to  the  exercise  of  powers 
admitted  to  belong  to  Conventions. 

In  probably  all  the  State  legislatures,  the  power  is  asserted  to 
imprison  persons  not  members  for  contemptuous  or  disorderly 
behavior  in  their  presence ;  for  threatening,  assaulting,  or  abus 
ing  any  of  their  members  for  any  thing  said,  done,  or  doing  in 
either  house ;  or  for  a  breach  of  their  privileges,  in  making  ar- 

1  The  statement  that  "  there  is  no  other  remedy,"  is  applicable  only  to  legis 
latures,  and  is  justified  by  the  principles  established  in  relation  to  the  privileges 
of  such  bodies.     Custom  has  ordained  that  it  is  a  breach  of  privilege  to  question 
a  member  of  a  legislature  for  words  spoken  in  the  house  in  debate,  and  many 
of  our  Constitutions  expressly  recognize  the  protection.     Cushiug's  Law  and 
Pract.  of  Legist.  Assemb.  p.  250. 

2  Id.  p.  259. 


424          POWER   OP   CONVENTIONS   TO    DISCIPLINE   STRANGERS. 

rests  for  debt,  or  in  assaulting  or  disturbing  their  officers  in  the 
execution  of  any  process  or  order  of  the  houses;  or  in  assault 
ing  a  witness  or  other  person  ordered  to  attend  upon  them,  or 
rescuing  persons  arrested  by  their  order,  knowing  them  to  be 
such.  But  it  is  a  noticeable  circumstance,  that  in  a  great  pro 
portion  of  the  cases  in  which  the  power  is  exercised  by  legisla 
tive  bodies,  it  is  done  in  pursuance  of  express  authority  given 
in  their  respective  Constitutions.  This  fact  might  cast  a  doubt 
on  the  right,  where  no  such  provision  exists,  were  it  not  that  it 
has  become  thoroughly  established  by  prescriptive  usage,  as  Mr. 
Gushing  has  said,  "  that  in  all  the  States,  as  well  those  whose 
Constitutions  do  not,  as  those  which  do  contain"  a  clause  au 
thorizing  its  exercise,  "  each  of  the  legislative  branches  has  juris 
diction,  according  to  the  common  parliamentary  law,  of  all 
offences  committed  against  it  by  persons  not  members."  1  But 
the  fact  that  no  law  or  Constitution  has  ever  recognized  the 
existence  of  such  a  power  in  Conventions,  authorizes  a  doubt 
in  regard  to  it.  Those  bodies  are  governed  by  the  parliamentary 
law,  but  as  all  other  public  assemblies  are,  that  is,  so  far  only 
as  is  consistent  with  their  special  character  and  functions.  Not 
all  provisions  of  what  is  called  the  parliamentary  law  are  in 
force  in  relation  to  all  deliberative  assemblies.  The  English 
Parliament  differs,  in  this  respect,  from  our  Congress,  and  the 
latter  from  the  State  legislatures,  which  again  differ  from  Con 
ventions  of  all  kinds,  amongst  which  last,  finally,  there  are  char 
acteristic  differences.  It  is  for  this  reason,  that  no  work  relating 
to  the  law  and  practice  of  any  one  of  those  bodies  can  be  fol 
lowed  as  an  absolute  guide  in  any  other.  In  some  measure  the 
functions,  and  to  a  very  great  extent,  the  powers,  of  all  those 
bodies  differ,  and  thus  necessitate  different  laws  and  usages. 
The  fact,  then,  that  the  power  in  question  is  commonly  exercised 
by  our  legislatures,  has  no  tendency  to  prove  that  it  belongs 
also  to  Conventions. 

§  466.  Is  the  power  to  arrest  or  imprison  persons,  not  mem 
bers  of  Conventions,  for  offences  committed  outside  of  their  halls, 
indispensable  to  the  exercise  of  the  powers  confessedly  vested 
in  those  bodies?  In  my  judgment,  this  cannot  be  pretended. 
For  a  moment  forgetting  the  danger  of  vesting  such  a  power  in 
a  single  chamber,  a  power  involving,  of  course,  that  of  holding, 
1  Cushing's  Law  and  Pract.  of  Legisl.  Assemb^  pp.  270-272. 


POWER   OF   CONVENTIONS   TO   DISCIPLINE   STRANGERS.         425 

in  spite  of  courts  and  legislatures,  persons  declared  by  it  guilty 
of  violating  its  privileges  or  of  contempt  of  its  authority,  is  there 
substantial  ground  for  pronouncing  the  power  to  be  necessary? 
If  it  were  admitted,  that  both  the  government  of  the  State 
in  its  various  departments,  and  the  government's  master,  the 
sovereign,  were  hostile  to  the  Convention,  interested  and  deter 
mined  to  compass  its  overthrow,  there  would  be  plausibility  in 
claiming  for  it  the  power  as  a  means  of  self-defence.  But  the 
hypothesis  is  at  variance  with  all  the  facts.  If  the  Convention 
be  legitimate,  it  is  the  offspring  of  the  government,  deriving  its 
origin  from  an  Act  concurred  in  by  both  the  legislature  and  the 
executive,  and  exists  constantly  under  the  guardianship  of  those 
two  friendly  powers,  which,  in  point  of  time,  preceded  it,  and 
which  accompany  and  will  survive  it,  so  that  at  no  moment  can 
it  be  at  the  mercy  of  hostile  influences,  and,  therefore,  stand  in 
need  of  the  extraordinary  powers  claimed  for  it. 

§  467.  Very  little  light  is  thrown  upon  the  general  question 
above  discussed  by  precedents.  One  or  two  cases,  however, 
have  arisen  bearing  upon  it,  to  which  reference  will  be  made. 

The  Illinois  Convention  of  1862,  on  a  suggestion  that  a  re 
porter  for  one  of  the  daily  journals  had  imputed  to  a  large  pro 
portion  of  its  members  complicity  with  a  disloyal  society,  known 
as  the  "  Knights  of  the  Golden  Circle,"  appointed  a  committee 
to  investigate  the  charge,  with  power  to  send  for  persons  and 
papers,  and  to  swear  witnesses,  which,  of  course,  involved  the 
power  to  compel  obedience  to  its  summons,  by  arrest  or  im 
prisonment,  if  necessary. 

As  may  be  inferred  from  the  high  tone  of  that  Convention,  in 
respect  of  its  prerogatives,  the  power  was  exercised  without  re 
serve;  witnesses  were  summoned  from  all  quarters,  and  their 
statements  taken  under  oath.  It  does  not  appear  that  the  pow 
ers  of  the  committee  were  questioned,  and,  therefore,  whatever 
weight  a  precedent,  established  by  a  Convention  disposed  to 
magnify  its  office,  but  whose  entire  labor  was  repudiated  by  the 
people,  may  be  thought  to  deserve,  it  must  be  allowed  to  have. 
As  the  instances  are  very  rare,  if  any  have  occurred  since  the 
Revolutionary  period,  in  which  Conventions  have  claimed  such 
powers,  their  propriety  may  be  doubted,  unless  shown  to  be  in 
dispensable  to  the  practical  working  of  the  Convention  system. 
Whether  it  was  so  or  not  in  Illinois,  may  be  inferred  from  the 


426          POWER   OF   CONVENTIONS   TO    DISCIPLINE  STRANGERS. 

considerations  before  presented,  and  also  from  the  particular 
facts  of  the  case.  The  substance  of  the  offence  charged  against 
the  reporter,  was  the  publication  of  libellous  imputations  upon 
the  members  of  the  Convention.  But  it  is  not  easy  to  see  how 
a  libel,  contained  in  a  newspaper  outside  of  the  organization 
whose  members  were  assailed,  and  relating  to  those  members 
not  in  their  character  as  delegates,  but  as  citizens  and  patriots, 
could  in  any  way  interfere  with  the  orderly  and  complete  execu 
tion  of  the  commission  of  the  collective  body.  The  presump 
tion  of  the  necessity  of  such  a  power  is  much  weakened  when 
it  is  considered  how  a  committee  acting  under  such  circum 
stances  would  be  likely  to  protect  and  vindicate  the  public  in 
terests.  The  discussion  in  the  Convention  on  the  subject  of 
appointing  a  committee,  indicated  that  the  libel  was  thought 
to  reflect  on  members  belonging  to  only  one  of  the  political 
parties  in  the  body.  That  party  was  in  a  majority  in  the  Con 
vention.  Hence  the  charges  in  substance  imported  that  a  large 
number,  perhaps  a  majority,  of  the  party  dominant  in  that 
body  was  connected  with  a  disloyal  society,  whose  aim  was  to 
revolutionize  the  State.  Suppose  those  charges  to  have  been 
well  founded;  would  an  inquest,  ordered  and  conducted  by  a 
majority  of  which  a  large  proportion  were  traitors,  furnish  to 
the  public  interests  adequate  protection  against  their  own  trea 
son  ?  If,  on  the  other  hand,  there  were  no  truth  in  the  charges, 
would  it  comport  with  the  public  interest  or  dignity,  that  an 
important  deliberative  assembly  should  lend  itself  to  purposes 
of  private  revenge,  or  squander  its  time  in  tracing  the  pedigree 
of  slanders  propagated  by  nameless  scribblers  in  the  public 
journals,  and  affecting  not  the  body  itself,  but  its  members  as 
individuals  ?  Have  we  no  judicial  tribunals  for  the  very  pur 
pose  of  conducting  such  inquiries  whenever  a  responsible  ac 
cuser  can  be  found,  or  are  those  bodies,  standing  aloof  from 
partisan  strifes,  less  fitted  to  conduct  them  than  a  Convention, 
whose  functions,  whatever  else  they  may  be,  are  certainly  not 
judicial  ? 

§  468.  In  regard  to  the  power  given  to  the  committee  to  ad 
minister  oaths,  but  a  word  is  necessary.  There  can  be  no  ques 
tion,  that  the  appointment  of  a  committee  with  such  a  power 
involved  an  exercise  of  ordinary  legislation,  to  which  the  Con 
vention  was  not  competent.  Unless  its  action  should  have  the 


POWER   OF   CONVENTIONS   TO    DISCIPLINE   STRANGERS.          427 

effect  of  a  law,  by  which  a  witness  could  be  compelled  to  take 
the  oath,  and  be  made  liable  to  the  penalties  of  perjury  in  case 
it  were  broken,  it  was  wholly  nugatory.  Would  our  courts 
pronounce  guilty  of  perjury  any  man  who  should  falsely  take 
an  oath  thus  authorized?  Would  not  the  act  of  administer 
ing  such  an  oath  be  within  the  statutes  against  extra-judicial 
oaths  ? 

§  469.  The  only  instance  I  shall  mention  in  which  a  Conven 
tion  has  assumed  to  exercise  the  power  of  arresting  persons, 
not  members  of  its  own  body,  occurred  in  Louisiana,  in  1864  ; 
and  I  refer  to  it  rather  because  it  furnishes  a  convenient  text  in 
connection  with  which  to  consider  the  conventional  power  of 
arrest,  as  a  practical  question,  than  because  the  precedent  is  of 
much  value  in  itself. 

On  the  22d  of  July,  near  the  close  of  the  session  of  that  Con 
vention,  there  appeared  in  the  New  Orleans  "  Times  "  newspaper, 
an  article  containing  severe  strictures  upon  the  president  and 
other  members  of  that  body,  —  in  plain  language  imputing  to  the 
former,  on  the  preceding  day,  drunkenness  in  his  chair,  and  to 
the  latter,  riotous  and  unseemly  behavior.  On  the  morning  of 
its  appearance,  the  president  arose  to  a  question  of  privilege  and 
called  the  attention  of  the  Convention  to  the  article  in  the 
"  Times,"  which  he  declared  to  be  a  libel  against  himself  as 
well  as  the  Convention.  The  following  resolution  was  there 
upon  offered  by  Mr.  Cutler,  and  adopted:  — 

"Resolved,  That  Thomas  P.  May,  editor  of  the  New  Orleans 
"  Times,"  be  brought  before  this  Convention  forthwith,  by  the 
sergeant-at-arms,  and  that  he  be  required  to  purge  himself  of 
the  contempt  and  libel  on  this  body,  as  published  in  the  issue 
of  July  22,  1864,  or  that  he  be  otherwise  dealt  with  as  the  Con 
vention  may  deem  proper  and  just." 

Mr.  May,  surrounded  by  his  friends,  refused  to  be  arrested,  and 
an  order  was  thereupon  procured  from  General  Banks,  then  in 
command  of  the  Department  of  the  Gulf,  with  his  headquarters 
at  New  Orleans,  directing  the  Provost  Marshal  to  arrest  him 
and  take  him  before  the  Convention.  Brought,  on  the  following 
day,  to  the  bar  of  that  body,  the  president  read  the  foregoing 
resolution,  and  asked  Mr.  May  what  reply  he  had  to  make; 
whereupon  that  gentleman  read  the  following  paper :  — 

"  I  am  here  with  the  Provost  Marshal  to  obey  a  military  order 


428          POWER   OF    CONVENTIONS   TO    DISCIPLINE   STRANGERS. 

issued  by  General  Banks,  and  not  in  obedience  to  a  resolution 
of  this  Convention.  At  the  proper  time,  in  the  proper  place, 
and  in  pursuance  of  the  forms  of  law,  I  will  answer  to  any 
charge  made  against  me  and  my  paper,  the  '  Times.'  '1 

Mr.  Henderson  moved  that  this  answer  be  considered  as  an 
additional  contempt,  which,  after  some  discussion,  was  adopted. 
The  Convention  then,  after  a  preamble  charging  upon  Mr.  May 
disloyalty  to  the  government,  and  a  gross  libel  against  the  presi 
dent  and  members  of  the  Convention,  as  well  as  contempt  of 
its  authority,  by  a  vote  of  49  to  31,  adopted  the  following  reso 
lution  :  — 

"  Resolved,  that  Thomas  P.  May,  Esq.,  for  his  said  contempt 
committed  upon  the  president  and  members  of  this  Convention, 
in  publishing  in  said  paper  said  libel,  shall  be  imprisoned  in  the 
parish  prison  of  the  Parish  of  New  Orleans  for  the  space  of 
ten  days,  unless  the  Convention  sooner  adjourns  ;  and  that  the 
sergeant-at-arms  be  directed  and  authorized  to  carry  this  resolu 
tion  into  effect." 

To  this  resolution  there  followed  others  requesting  the  mili 
tary  authorities  to  suppress  the  publication  of  the  " Times"  and 
the  President  of  the  United  States  to  remove  Mr.  May  from  a 
federal  office  held  by  him. 

§  470.  In  connection  with  the  above  resolutions,  it  is  proper  to 
note,  that  by  Article  23,  of  the  existing  Constitution  of  Louis 
iana,  that  of  1852,  each  house  of  the  legislature  was  empow 
ered  to  "  punish  by  imprisonment  any  person,  not  a  member,  for 
disrespectful  and  disorderly  behavior  in  its  presence,  or  for  ob 
structing  any  of  its  proceedings"  such  imprisonment  not  to  "  ex 
ceed  ten  days  for  each  offence." 

It  is  probable,  that,  in  the  outset,  the  Convention  deemed 
itself  to  be  substantially  within  this  constitutional  provision, 
though  a  newspaper  libel  could  hardly  be  considered  disrespect 
ful  or  disorderly  behavior  in  its  presence  or  as  obstructing  any  of 
its  proceedings.  It  accordingly  commenced  operations  with  a 
vigor  calculated  to  impress  the  unthinking  with  high  ideas  of  its 
power.  But  at  this  stage  of  the  case,  and  before  any  attempt 
was  made  to  imprison  the  culprit  editor  under  the  order  speci 
fied,  a  second  order  from  General  Banks  released  him  from  cus 
tody,  and  he  was  not  further  molested.  Thus,  this  dignified 
body,  with  the  full  purpose  of  humbling  the  offending  editor, 


PRIVILEGES   OP  MEMBERS   OP   CONVENTIONS.  429 

after  putting  in  operation  all  the  machinery  in  its  possession  by 
which  it  could  hope  to  accomplish  that  end,  retired  from  the  un- 
equnl  conflict,  ending,  in  truth,  where  it  ought  to  have  begun, 
by  calling  upon  the  government  to  do  for  it  what  it  could  not 
accomplish  by  its  own  officers.  But  in  these  proceedings  it 
was  not  only  chargeable  with  imbecility ;  it  was  guilty  of 
usurpation  of  unusual  and  dangerous  powers.  How  far  the  ex 
ceptional  condition  of  the  State  at  the  time  might  have  pal 
liated  that  usurpation,  had  not  circumstances  shown  it  to  be 
unnecessary  and  foolish,  need  not  be  definitely  settled.  As  the 
grasp  of  the  Convention  upon  its  pretended  powers  was  not 
secure  enough  to  bring  success,  but  it  was  found  necessary  to 
call  upon  the  existing  government  to  aid  in  maintaining  its  dig 
nity,  it  is  demonstrated  beyond  question  that  it  could  do  its 
appointed  work  without  those  powers,  namely,  by  calling  upon 
the  public  authorities  for  aid  whenever  the  powers  inherent  in 
all  public  assemblies  were  found  insufficient  to  protect  it  from 
insult  or  to  expedite  its  business.1 

§  471.  It  may  be  useful  now  to  append  a  few  remarks  in 
relation  to  the  question  of  privileges,  as  applicable  to  Con 
ventions.  Are  the  members  of  a  Convention,  or  is  the  body 
itself,  entitled  to  claim  the  immunities  usually  accorded  to  the 
legislature,  and  to  its  individual  members,  such  as  exemption 
from  legal  process,  from  service  as  jurors  or  witnesses,  or  from 
legal  question  tending  to  impair  the  freedom  of  their  debates 
and  proceedings  ?  It  is  doubtless  essential,  in  order  to  enable 

1  For  an  excellent  discussion  of  the  proceedings  of  this  Convention  in  this 
case,  see  Speech  of  Mr.  Casabat,  a  member  of  the  body,  in  Deb.  La.  Cony., 
1864,  p.  509. 

As  to  the  general  question  discussed  in  the  text,  it  is  proper  to  remark  that  in 
all  the  Conventions  thus  far  held  in  the  United  States,  some  one  hundred  and 
fifty  in  number,  I  find  no  instance  of  the  exercise  of  the  power  of  arresting  or 
imprisoning  persons  not  members  of  those  bodies,  except  in  those  whose  charac 
ter  and  proceedings  were  such  as  to  rank  them  as  Revolutionary  Conventions. 
To  this  remark  the  instance  in  the  Louisiana  Convention  of  1864,  as  I  regard 
that  body,  is  no  exception.  During  the  Revolution,  the  Conventions  which 
framed  the  first  Constitutions  of  their  respective  States,  were  nearly  all  of  them 
of  the  revolutionary  stamp  ;  and  in  many  of  those  which  clearly  were  such,  the 
power  in  question  was  exercised,  and,  so  far  as  I  am  aware,  in  no  others.  For 
an  instance  of  this,  see  the  proceedings  of  the  New  Jersey  Convention  of  1776, 
concerning  the  arrest  and  imprisonment  of  the  royal  governor,  William  Frank 
lin,  in  Jour.  N.  J.  Cony.,  1776,  pp.  10-13,  22,  23. 


430  PRIVILEGES   OP   MEMBERS   OF   CONVENTIONS. 

a  legislature,  or  any  other  public  assembly,  to  accomplish  the 
work  assigned  to  it,  that  its  members  should  not  be  prevented 
or  withdrawn  from  their  attendance,  by  any  causes  of  a  less 
important  character ;  but  that,  for  a  certain  time  at  least,  they 
should  be  excused  from  obeying  any  other  call,  not  so  imme 
diately  necessary  for  the  great  services  of  the  nation  ;  they  must 
also  be  always  protected  in  the  exercise  of  the  rights  of  speech, 
debate  and  determination  in  reference  to  all  subjects  upon  which 
they  may  be  rightfully  called  to  deliberate  and  act ;  it  is  abso 
lutely  necessary,  finally,  that  the  aggregate  body  should  be  ex 
empted  from  such  interferences  or  annoyances  as  would  tend  to 
impair  its  collective  authority  or  usefulness.1  The  immunities 
thus  indispensable  are,  in  the  case  of  legislatures,  commonly 
secured  by  rules  and  maxims  or  constitutional  provisions,  and 
are  styled  privileges,  as  being  rights  or  exemptions  appertaining 
to  their  office,  to  which  citizens  generally  are  not  entitled. 

§  472.  Out  of  the  catalogue  of  privileges  above  given,  it  is 
not  easy  to  select  one  with  which  a  Convention  or  its  members 
could  safely  dispense.  It  ought  never  to  be,  as  without  them  it 
would  frequently  be,  in  the  power  of  the  enemies  of  reform  to 
prevent  or  postpone  it  by  arresting,  harassing  or  intimidating 
the  delegates  to  the  body  by  whom  it  is  to  be  accomplished. 
But  the  real  difficulty  is,  not  to  determine  whether  or  not  a  Con 
vention  ought  to  enjoy  those  privileges,  but  to  ascertain  how 
and  by  whom  they  should  be  protected  and  enforce^. 

Upon  this  point,  there  is,  in  my  judgment,  but  one  position 
that  can  be  maintained  with  safety,  and  that  is,  that  Conven 
tions  must  stand  upon  the  same  footing  with  jurors  and  wit 
nesses  ;  they  must  look  to  the  law  of  the  land  and  to  its  ap 
pointed  administrators,  and  not  to  their  own  powers,  for  protec 
tion  in  their  office.  If  a  juror  or  a  witness,  going  or  returning, 
is  harassed  by  arrest,  he  does  not  himself  or  with  his  profes 
sional  associates  cite  the  offending  officer  before  him  for  pun 
ishment,  but  sues  out  a  writ  of  Habeas  Corpus,  and  on  pleading 
his  privilege  procures  his  discharge.  Beside  this,  for  personal 
indignity  or  injury,  he  may  appeal  to  the  laws  for  pecuniary 
compensation.  The  same  course  is  doubtless  open  to  any 
member  of  a  Convention,  and  it  furnishes  for  all  ordinary  cases 
a  practical  and  sufficient  remedy.  Behind  those  bodies  stands 
1  Cushing's  Law  and  Pract.  of  Legist.  Assemb.,  §§  529,  530,  531. 


PRIVILEGES   OF   MEMBERS   OF   CONVENTIONS.  431 

continually,  armed  in  full  panoply,  the  state,  with  all  its  ad 
ministrative  and  remedial  agencies,  ready  to  protect  and  defend 
them.  If  experience,  however,  should  at  any  time  show  that 
Conventions  could  not  rely  for  defence  upon  laws  and  mag 
istrates  alone,  the  proper  remedy  would  be  an  application  to  the 
legislature  for  an  increase  of  powers.  But  such  a  necessity  is 
not  likely  to  arise.  Except,  perhaps,  in  revolutionary  times, 
interference  with  the  privileges  of  Conventions  need  not  be 
apprehended.  The  business  that  engages  them  is  not  one  that 
appeals  very  strongly  to  the  passions  of  men.  If  a  member  is 
occasionally  arrested  or  libelled,  it  is  absurd  to  pretend  that  our 
legal  tribunals  are  not  competent  to  give  adequate  and  sea 
sonable  redress.  And  if  the  times  be  revolutionary,  it  is  better 
that  such  an  assembly  as  a  Convention  should  be  armed  only 
with  the  weapons  of  its  ordinary  warfare  —  which  are  the 
weapons  of  peace  —  since  experience  has  abundantly  shown 
that,  having  others,  it  is  quite  as  likely  to  wield  them  in  the 
interests  of  revolution,  as  any  other  body  in  the  State. 

§  473.  The  only  remaining  point  proposed  for  discussion  in 
this  chapter  relates  to  the  extent  of  the  power  of  Conventions, 
of  their  own  motion,  to  prolong  or  to  perpetuate  their  existence. 

Upon  the  general  question,  I  shall  only  observe,  that  when 
the  Act  of  Assembly  under  which  a  Convention  meets,  ex 
pressly  or  by  reasonable  implication  prescribes  the  work  expected 
of  it,  as,  "  to  revise  and  propose  amendments  to  the  Constitu 
tion,"  or  simply  "  to  meet  in  Convention,"  where  the  purpose 
of  the  meeting  has  been  clearly  made  known  by  preliminary 
discussion,  when  that  work  has  been  accomplished,  the  body 
eo  instanti  becomes  functus  qfficio  ;  and  has  no  power  to  prolong 
its  existence  a  moment,  for  any  purpose  whatever.  The  only 
difficulty  is  to  determine  when  its  work  has  been  accomplished. 
Where  these  bodies  have  confined  themselves  to  the  limited 
sphere  of  duty  in  foregoing  sections  asserted  to  be  alone  proper 
for  them,  that  of  recommending  to  their  constituents  changes 
in  the  fundamental  law,  the  question  I  am  considering  could 
not  arise.  It  is  only  when,  through  the  ignorance  or  negligence 
of  the  legislatures  calling  them,  no  provision  has  been  made  for 
taking  the  sense  of  the  people  upon  the  fruit  of  their  labors,  or 
for  putting  it  in  operation,  and  it  is  therefore  deemed  necessary 
for  the  Conventions  themselves  to  perform  that  duty,  that  any 


432      POWER   OF   CONVENTIONS  TO    PROLONG   THEIR   EXISTENCE. 

reason  could  be  discovered  for  prolonging  an  existence  which 
properly  ends  when  its  constitutional  function  has  been  dis 
charged.  In  a  few  cases,  accordingly,  where  such  has  been  the 
state  of  facts,  Conventions,  after  completing  their  scheme  of 
fundamental  modifications,  have  adjourned  to  meet  at  a  future 
day,  with  a  view  either  to  amend  it,  should  the  popular  sense 
have  pronounced  against  it  in  any  part,  or  to  put  it  in  opera 
tion,  if  it  should  have  met  with  general  approval. 

Thus,  the  New  Hampshire  Convention  of  1781,  and  the 
Pennsylvania  Convention  of  1789,  having  framed  their  Consti 
tutions,  adjourned,  with  a  view  to  collect  the  public  sense  in 
regard  to  their  work,  arid  at  a  subsequent  session  adopted  and 
put  it  in  operation.  The  Kentucky  Convention  of  1849,  on 
the  other  hand,  adjourned  to  a  future  day,  in  order  that,  in  the 
interim,  the  people  might  vote  upon  the  question  of  its  adop 
tion  or  rejection,  and,  on  its  being  adopted,  reassembled  and  put 
it  in  operation. 

What  were  the  terms  of  the  Act  calling  the  New  Hampshire 
Convention  of  1781,  I  am  not  informed.  That  calling  the 
Pennsylvania  Convention  of  1789,  was  to  the  effect  that  that 
body  should  review,  and,  if  it  should  see  occasion,  alter  and 
amend,  the  Constitution  of  the  State  ;  and  that  "  it  would  be 
expedient,  just,  and  reasonable,  that  the  Convention  should  pub 
lish  their  amendments  and  alterations  for  the  consideration  of 
the  people,  and  adjourn  at  least  four  months  previous  to  confirma 
tion." 

The  Act  calling  the  Kentucky  Convention  of  1849  indicated 
the  duty  and  powers  of  that  body  only  by  enacting  "that  a 
Convention,  for  the  purpose  of  readopting,  amending-,  or  chang 
ing  the  Constitution  of  the  State,  be  called,"  &c. 

From  these  provisions,  it  was  evidently  the  intention  of  the 
legislatures  of  Pennsylvania  and  Kentucky  that  the  Conven 
tions  should  adopt  definitively  and  put  in  operation  the  Consti 
tutions  or  parts  of  Constitutions  framed  by  them.  Until  that 
work  was  accomplished,  then,  they  had  a  right  to  sit,  or,  having 
adjourned  for  a  reasonable  time  and  purpose,  again  to  assemble. 
Their  work  concluded,  however,  without  special  authority,  I 
conceive,  it  would  be  wholly  beyond  their  power  to  prolong 
their  existence  a  moment,  still  more  to  reconvene,  after  having 
once  dispersed. 


POWER   OP   CONVENTIONS  TO    PROLONG   THEIR   EXISTENCE.     433 

§  474.  A  case  has  lately  occurred  in  Louisiana,  involving  the 
application  of  these  principles,  which  I  do  not  feel  at  liberty  to 
pass  over,  although,  on  account  of  its  connection  with  the  party 
strifes  of  the  day,  I  would  gladly  do  so,  were  it  not  an  act  of 
cowardice  to  refuse  to  discuss  a  question  of  transcendent  inter 
est,  coming  directly  within  the  scope  of  this  inquiry,  because, 
by  discussing  it,  I  might  be  brought  in  collision  with  this  party 
or  with  that. 

The  Louisiana  Convention  of  1864  was  called  by  General 
Banks,  in  command  of  the  Department  of  the  Gulf,  by  General 
Order  No.  35,  dated  March  11,  1864. 

The  only  clause  of  the  Order  determining  the  powers  and 
functions  of  the  Convention  was  the  following :  — 

"  I.  An  election  will  be  held  on  Monday,  the  28th  of  March, 
at  9  o'clock,  A.  M.,  in  each  of  the  election  precincts  established 
by  law  in  this  State,  for  the  choice  of  delegates  to  a  Conven 
tion,  to  be  held  for  the  revision  and  amendment  of  the  Constitu 
tion  of  Louisiana" 

In  pursuance  of  this  order,  delegates  were  elected,  assembled 
on  the  day  named,  revised  and  amended  the  Constitution  of 
Louisiana,  submitted  the  same  for  adoption  or  rejection  to  a 
vote  of  the  people,  and  on  the  25th  of  July  following  adjourned. 
It  did  not,  however,  adjourn  sine  die.  On  the  last  day  of  its 
session,  by  a  vote  of  62  to  14,  it  adopted  the  following  resolu 
tion  :  — 

"  Resolved^  That  when  this  Convention  adjourns,  it  shall  be 
at  the  call  of  the  president,  whose  duty  it  shall  be  to  reconvoke 
the  Convention  for  any  cause,  or,  in  case  the  Constitution  should 
not  be  ratified,  for  the  purpose  of  taking  such  measures  as  may 
be  necessary  for  the  formation  of  a  civil  government  for  the 
State  of  Louisiana.  He  shall  also,  in  that  case,  call  upon  the 
proper  officers  of  the  State  to  cause  elections  to  be  held  to  fill 
any  vacancies  that  may  exist  in  the  Convention,  in  parishes 
where  the  same  may  be  practicable." l 

When  the  Convention  adjourned,  accordingly,  it  "  adjourned 
subject  to  the  call  of  the  president,  in  pursuance  of  the  resolu 
tions  this  day  adopted."  2 

After  its  adjournment,  the    Constitution  framed   by  it  was 

1  Journal  La.  Cony.,  1864,  p.  170. 

2  Id.  p.  171. 
28 


434      POWER   OF   CONVENTIONS   TO    PROLONG   THEIR   EXISTENCE. 

submitted,  as  required  by  Article  152,  to  a  vote  of  "  the  good 
people  "  of  the  State,  and  adopted. 

§  475.  By  the  Constitution  thus  framed,  the  State  of  Louisi 
ana  has  been  governed,  so  far  as  she  has  had  a  civil  govern 
ment  at  all,  from  the  time  of  its  adoption  on  the  first  Monday 
of  September,  1864,  up  to  the  present  time. 

Early  in  the  month  of  July,  1866,  however,  an  attempt  was 
made  to  reassemble  the  Convention  of  1864.  The  objects  to 
be  effected  by  it,  as  declared  by  the  proclamation  of  the  person 
assuming  to  call  it,  referred  to  below,  were  to  revise  the  Consti 
tution,  and  to  take  measures  for  the  ratification  of  an  amend 
ment  to  the  Constitution  of  the  United  States,  proposed  to  the 
State  legislatures  by  the  39th  Congress.1 

To  this  end,  the  president  of  the  Convention  was  requested 
by  a  caucus  of  its  members,  to  call  that  body  together  in  pursu 
ance  of  the  resolution  above  recited,  but  refused  so  to  do.  The 
caucus  thereupon  declared  the  office  of  president  vacant,  and 
elected  Judge  R.  K.  Howell  president  pro  tern.,  by  whom  a  call 
was  issued  requiring  the  delegates  to  reconvene  in  Convention 
on  the  30th  of  July  following.  There  being,  from  various  causes, 
also  a  large  number  of  vacancies  in  the  Convention,  the  Gov 
ernor  of  the  State,  J.  Madison  Wells,  in  alleged  pursuance  of 
the  same  resolution,  issued  his  proclamation,  requiring  the 
prop2r  officers  of  the  State  to  issue  writs  of  election  for  dele 
gates  in  unrepresented  parishes.  The  Convention  accordingly 
assembled  at  New  Orleans  on  the  day  appointed,  but  was  dis 
persed  by  a  mob,  led  by  the  police  of  the  city,  with  circum 
stances  of  atrocity  unexampled  in  the  history  of  our  country, 
except  amidst  the  passions  of  actual  war.2 

§  476.  Upon  these  facts  the  question  arises,  Was  the  body, 
which  met  at  New  Orleans  on  the  30th  of  July,  1866,  legally  a 
continuation  of  the  Convention  of  1864? 

In  my  judgment,  it  was  not. 

Looking  at  the  resolution  of  the  Convention,  it  is  clear  that 
no  authority  to  call  the  body  again  together  was  derived  from 

1  Had  the  latter  been  the  only  object  of  the  reconvocation  of  the  Conven 
tion,  it  would  have  been   alone  sufficient  to  stamp  it   as  illegal.      See   ante, 
§  447. 

2  For  the  official  proceedings  culminating  in  the  reassembling  of  the  Conven- 
tiom,  see  post,  Appendix  E. 


POWER   OP   CONVENTIONS   TO   PROLONG   THEIR    EXISTENCE.     435 

that  part  of  it  which  empowered  the  president  "  to  reconvoke  the 
Convention  ....  in  case  the  Constitution  should  not  be  rati 
fied,"  for  it  was  ratified.  If  the  body  was  legally  reconvoked, 
it  was  under  that  clause  of  the  resolution  which  declared  it  to 
be  the  duty  of  the  president  to  reconvoke  "the  Convention  for 
any  cause" 

Now,  in  reference  to  this  clause, — 

1.  Supposing  that  it  authorized  the  president  of  the  Conven 
tion,  at  his  discretion,  to  call  that  body  together  at  any  future 
time,  the  trust  was  personal  and  official,  and  could  not  be  dis 
charged  by  another,  even   if  the  president  was  unable  or  un 
willing  himself  to  discharge  it.     In  fact,  however,  the  president 
exercised  the  trust  —  the  discretion  committed  to  him  —  for,  on 
application,  he  refused  to  reconvoke  the  body. 

2.  But,  admitting  that  the  trust  might,  under  some  circum 
stances,  be  shifted  to,  or  assumed  by,  another,  a  rightful  succes 
sor  to  it  must  have  been  the  legal  appointee  of  the  Convention  ; 
and  to  fulfil  that  condition,  the  Convention  must  first  have  been 
legally  reconvoked.     But,  clearly,  in  its  dispersed  and  dormant 
condition,  neither  the  body  itself  nor  any  caucus  of  its  mem 
bers  could  do  an  act  which  was  necessary  as  a  precedent  condi 
tion  to  its  reconvocation.     In  other  words,  the  appointment  of 
a  president  pro  tern,  by  a  caucus  of  the  delegates,  was  but  the 
act  of  individuals,  and  of  no  validity  whatever  under  the  reso 
lution.     Who  composed  the  caucus?     Conceding  that  all  the 
delegates  were  present,  —  which  was  not  the  fact,  —  by  what 
authority  did  they  sit  in  caucus  ?     When  a  Convention  acts,  it 
does  so,  not  by  a  caucus,  but  by  its  whole  body.     That  it  could 
not  so  act  is  a  proof  that,  except  as  individuals,  its  members 
could  not  act  at  all. 

§  477.  3.  But  a  stronger  argument  against  the  validity  of 
the  act  of  reconvocation  is  found  in  the  terms  of  the  clause  of 
the  resolution  in  question.  Its  words  are,  —  "  Whose  duty  it 
shall  be  to  reconvoke  the  Convention  for  any  cause." 

Within  what  limits  was  this  power  to  be  exercised  —  limits, 
that  is,  as  to  time  and  occasion?  Was  the  president  of  the 
Convention  to  hold  this  most  important  prerogative  during  life  ? 
Might  he  call  the  body  together,  as  he  might  his  hounds,  for 
ordinary  purposes  of  party  or  of  administration,  or  must  the 
extraordinary  assembly  be  reserved  for  extraordinary  occasions  ? 


436      POWER   OF   CONVENTIONS   TO    PROLONG   THEIR   EXISTENCE. 

When  and  for  what  the  call  should  be  made,  was  left  entirely 
to  the  discretion  of  the  president,  a  single  person,  no  longer 
even  an  officer,  unless  indeed  the  Convention  be  regarded  as 
sitting  en  permanence.  Such  a  discretion  defines  precisely  that 
which,  under  our  Constitutions,  is  lodged  with  our  General 
Assemblies  —  a  legislative  discretion.  That  a  Convention  in 
the  last  stages  of  dissolution,  having  completed  its  work,  should 
attempt  to  give  such  a  discretion,  was  not  only  unconstitutional, 
it  was  impudent.  Imagine  a  conflict  between  the  General  As 
sembly  and  the  president  of  the  Convention,  on  the  question  of 
calling  that  body  again  together.  The  General  Assembly  passes 
an  Act  requiring  the  Convention  to  reassemble.  The  president 
issues  his  proclamation  forbidding  it  to  convene.  The  delegates 
obey  the  latter,  for,  by  the  terms  of  the  resolution,  the  discretion 
to  call  them  was  lodged  with  the  president.  Or,  the  General 
Assembly,  twenty-five  or  fifty  years  after  the  adjournment,  re 
solves  to  call  a  new  Convention.  The  president  deems  the  old 
one  an  abler  or  a  more  available  body,  and  issues  his  order 
reconvoking  it.  Which  is  the  legal  Convention  ?  Is  the  air 
peopled  with  defunct  Conventions,  waiting  the  magic  word  from 
their  defunct  presidents,  to  clothe  themselves  again  in  flesh  to 
rule  us  ?  Yet  such  may  certainly  be  the  case,  unless  when  its 
function  is  discharged  the  Convention  dies  —  if,  at  its  decease,  it 
can  lodge  with  its  presiding  officer,  for  life,  a  discretion  to  re 
vive  the  body  at  his  own  pleasure  and  for  his  own  purposes. 

§  478.  I  have  thus  far  reasoned  upon  the  case  as  though  the 
Louisiana  Convention  of  1864,  sought  to  be  reassembled,  was 
itself  valid  as  a  Constitutional  Convention.  Regarding  it,  on 
the  contrary,  as  a  Revolutionary  Convention,  according  to  the 
view  taken  of  it  in  a  preceding  chapter,1  the  aspects  of  the  case 
would  be  materially  different,  and  they  would  vary  again  accord 
ingly  as  the  Convention  met  in  a  State  destitute  of  a  regular 
government  —  during  a  reign  of  force  —  or  in  a  State  under  a 
government  established  and  recognized. 

What  a  revolutionary  body  may  or  may  not  do,  it  would 
be  impossible  to  define.  Equally  impossible  would  it  be  to 
determine  what  might  or  might  not  be  done  against  it,  where 
force  was  the  only  law.  Appealing  only  to  force  itself,  it  would 
not  lie  in  the  mouths  of  its  members  or  adherents  to  complain, 
l  See  ante,  §§  250-259. 


POWER   OF   CONVENTIONS   TO    PROLONG   THEIR    EXISTENCE.      437 

so  long  as  the  force  which  overpowered  it  was  not  exercised 
with  inhumanity.  Whoever  thought  its  assembling  or  its  con 
duct  wrongful,  would  be  at  liberty  to  suppress  it,  using  such 
force  for  that  purpose  as  might  be  necessary.  A  fortiori,  if  it 
had  been  called  by  the  President  of  the  United  States,  acting, 
not  as  the  administrator  of  the  law,  but  as  the  director  of  the 
public  force,  limited  only  by  his  own  discretion,  —  in  other 
words,  as  the  engineer  of  that  which  is  but  the  negation  of  all 
law,  that  officer  might  undoubtedly  disperse  it  at  will.  Might 
he  not  do  as  he  would  with  his  own  ? 

On  the  other  hand,  if,  on  the  30th  of  July,  1866,  the  State  of 
Louisiana  was  to  be  considered,  in  law,  as  restored  to  her  con 
stitutional  relations  to  the  Union,  under  a  Constitution  and 
government  sanctioned  by  her  own  people  as  well  as  by  the 
United  States,  then  the  attempt  to  reassemble  the  Convention 
of  1864  was  of  the  same  character  as  it  would  have  been  had 
that  body  been  originally  legitimate,  and  the  State  never  in  a 
revolutionary  condition.  On  that  hypothesis,  the  reassembed 
Convention  was  a  public  meeting  of  citizens,  certainly  having 
a  right  peaceably  to  assemble,  claiming  besides  to  be  charged 
with  official  functions,  and,  whatever  its  purposes,  subject  only 
to  be  dealt  with  according  to  its  legal  character  and  deserts, 
by  the  State  authorities.  In  such  a  case,  the  President  of  the 
United  States  could  rightfully  interfere  with  the  body  only  when 
called  upon  by  those  authorities  so  to  do,  pursuant  to  the  Acts 
of  Congress  of  February  28,  1795,  and  March  3,  1807,  which 
authorize  him  "  in  case  of  an  insurrection  in  any  State  against 
the  government  thereof,"  to  call  out  the  militia,  or  to  make  use 
of  the  regular  army  to  suppress  the  same,  but  only  "  on  appli 
cation  of  the  legislature  of  such  State,  or  of  the  executive,  when 
the  legislature  cannot  be  convened" 

Inasmuch,  therefore,  as  the  legislature  of  Louisiana  did  not 
apply  to  the  President  for  aid  in  suppressing  the  unlawful  Con 
vention  of  July  29,  1866,  and  as  the  executive  of  the  State 
favored  the  Convention,  if  its  suppression  was  effected  by  the 
authority  or  advice  of  the  President  of  the  United  States,  as 
has  been  charged,  the  interference  of  that  officer  was,  in  my 
judgment,  unconstitutional.1 

i  Under  a  resolution  substantially  the  same  as  that  passed  by  the  Louisiana 
Convention  of  1864,  the  North  Carolina  Convention  of  1865  reassembled  in  the 


438      POWER   OF   CONVENTIONS   TO   PROLONG   THEIR   EXISTENCE. 

following  year,  and  proposed  amendments  to  the  State  Constitution,  which  being 
submitted  to  a  vote  of  the  people  were  rejected.  Thus  the  question  of  the 
validity  of  the  act  of  reconvocation  as  well  as  of  the  reassembled  body  itself, 
was,  in  North  Carolina,  happily  left,  as  a  purely  legal  question,  to  be  decided 
by  the  courts,  instead  of  being  made,  as  seems  to  have  been  done  in  New  Or 
leans,  the  pretext  for  wholesale  proscription  and  murder  by  a  mob  who  were 
opposed  to  the  objects  of  the  Convention.  The  reassembled  Conventions  of 
those  States  were  either  Constitutional  Conventions  or  Spontaneous  Conven 
tions  of  citizens  in  their  private  capacity.  In  either  character  they  were  entitled 
to  the  protection  of  the  laws,  and,  if  charged  with  crime,  to  be  tried  and  pun 
ished  by  the  laws. 


CHAPTER  VII. 

§  479.  AN  important  part  of  the  duty  of  a  Convention  is  to 
submit  to  the  sovereign,  for  its  approval  or  disapproval,  the 
propositions  of  constitutional  law  which  it  has  matured. 

The  duty  of  submission  grows  out  of  the  nature  of  our 
institutions. 

In  the  American  political  system,  the  edifice  of  government 
rests  on  the  people.  Two  ideas  pervade  that  system  :  first,  that 
of  the  absolute  right  of  the  people,  under  God,  and,  in  the 
States,  subject  to  the  Federal  Constitution,  themselves  to  de 
termine  and  to  carry  into  operation  the  policy,  laws,  and  gov 
ernment,  in  all  its  departments  ;  and,  secondly,  that  of  the  sol 
emn  obligation  resting  on  those  through  whom  the  people  act, 
not  only  to  obey  their  will,  but  to  keep  themselves  constantly  in 
a  condition  of  perfect  responsibility  to  them,  save  in  the  single 
case  where  a  discretion  has  been  in  terms  given  them.  In 
other  words,  if  the  safety  of  the  State,  as  constituted  in  Amer 
ica,  requires,  as  it  certainly  does,  that  the  people  should  possess 
a  curb  upon  their  agents,  it  requires  no  less  that  those  agents 
should  recognize  that  curb  as  existing,  and  facilitate  its  appli 
cation.  We  have  seen  that  our  Conventions  are  in  substance 
but  mere  committees,  destitute  of  the  power  of  self-direction, 
and  by  their  organization  as  little  fitted  as  in  theory  designed  for 
independent  or  definitive  action.  If,  therefore,  in  the  face  of 
these  principles,  the  people  were  so  far  to  forget  what  is  essen 
tial  to  the  safety  of  their  institutions  as  to  be  willing  to  throw 
the  State,  without  check,  into  irresponsible  hands,  the  Conven 
tion  is  the  last  body  to  which  should  be  committed  so  grave  a 
trust.  This  follows  from  the  fact,  if  from  no  other,  that  it  con 
sists  of  but  a  single  chamber.  But  the  Convention,  as  we  have 
seen,  is  of  revolutionary  parentage  ;  it  was  originally  the  child 
of  illegality,  and  has  come  into  the  constitutional  household  by 
adoption,  and  hence  has  been  ever  the  subject,  in  all  questions 


440  SUBMISSION    OF   CONSTITUTIONS. 

of  power  and  competence,  of  fatal  misconceptions.  It  is,  of  all 
our  institutions,  the  one  through  which  sedition  and  revolution 
would  most  naturally  seek  to  make  their  approaches.  Instead 
of  deserving  confidence,  such  an  institution  merits  distrust  and 
repression.  In  a  word,  to  apply  the  principles  above  announced, 
it  is  the  interest  of  the  Commonwealth  that  no  discretion  liable 
to  be  abused  should  be  left  to  a  Convention,  without  careful  pro 
vision  for  repressing  and  correcting  its  abuses  ;  or,  viewed  on 
the  side  of  the  Convention,  it  is  for  such  a  body  a  sacred  duty, 
in  no  case  unbidden  to  assume  to  exercise  a  discretion,  upon 
an  abuse  of  which  there  is  not  reserved  to  the  people  an  instant 
and  effectual  check.  Such  a  check  (and  it  is  practically  the 
only  one  possible)  is  involved  in  the  submission  of  the  fruit  of 
its  labors  to  the  judgment  of  those  for  whom  they  act  —  the 
people. 

§  480.  The  general  propriety  and  necessity  of  submission  being 
conceded,  there  are  three  cases  in  which  doubts  may  arise  as  to 
the  duty  of  Conventions  in  that  regard.  It  may  be  useful  to 
dwell  a  few  moments  upon  each  of  them. 

The  first  case  is,  where  both  the  Constitution  and  the  Act  of 
Assembly,  under  which  the  Convention  met,  are  silent  in  respect 
of  submission : 

The  second,  where,  by  one  or  both  of  those  instruments,  sub 
mission  is  expressly  required ;  specific  directions,  perhaps,  being 
also,  at  the  same  time,  given  as  to  the  mode  : 

The  third,  where,  in  the  Act  calling  the  Convention,  submis 
sion  is  expressly  dispensed  with. 

§  481.  I.  Where  neither  the  Convention  Act  nor  the  Consti 
tution  requires  the  Convention  to  submit  its  work  to  the  people, 
the  duty  of  that  body  to  do  so,  is,  nevertheless,  upon  sound 
principles,  in  my  judgment,  perfectly  clear.  Obviously,  a  Con 
vention  is  bound  to  regard  itself  as  limited  to  the  exercise  of 
such  powers  as  are  expressly  given  to  it,  or  as  are  necessary  to 
the  exercise  of  such  as  are  expressly  given.  But,  in  the  case 
supposed,  no  express  power  relating  to  submission  is  contained 
in  its  commission.  Both  the  duty  and  power  of  the  body  are 
then  to  be  determined  by  the  general  scope  of  that  commission, 
so' interpreted  as  to  harmonize  with  the  spirit  of  the  institutions 
of  the  country,  and  to  assure  to  them,  in  the  greatest  possible 
degree,  exemption  from  the  evils  and  dangers  to  which  they  are 


SUBMISSION   OF   CONSTITUTIONS.  441 

liable.  Under  such  a  rule,  the  question  whether  submission  is 
or  is  not  a  duty,  is  one  mainly  of  presumptions.  Is  it  probably 
the  safer  constitutional  precedent  to  establish,  that  a  body,  con 
sisting  of  a  single  chamber,  and  charged  with  legislative  duties 
of  supreme  importance,  may  shape  their  work  as  their  own  in 
terests  or  prejudices  may  dictate,  and  then  put  it  into  practical 
operation,  wholly  without  responsibility  to  the  people  ;  or,  that 
the  measures  they  may  mature  shall  be  regarded  as  advisory 
merely,  as  having  no  force  or  validity  beyond  that  of  simple 
recommendations,  until  ratified  by  those  for  whom  they  act? 
This  is  the  whole  subject  in  a  nutshell,  and  it  is  impossible  for 
a  moment  to  doubt  which  is  the  safer,  and,  therefore,  the  only 
proper  course.  Conventions  are  bound  to  give  to  the  people  an 
opportunity  to  negative  inexpedient  or  dangerous  constitutional 
provisions.  They  may  know  their  members  to  be  honest,  and 
may  believe  them  to  be  wise,  and  their  enactments  salutary  or 
even  necessary  ;  but  they  will  not  fail  to  recognize  the  two  car 
dinal  truths,  —  first,  that  however  virtuous  or  wise  men  may  be, 
they  are  liable  to  fall  into  errors,  which  may  entail  upon  the 
State  no  less  disaster  than  would  treason  itself;  and,  secondly, 
that  the  action  they  may  take  in  any  particular,  whether  right  or 
wrong,  is  likely  to  become  a  precedent  for  succeeding  Conven 
tions. 

§  482.  II.  The  second  case,  which  has  already  formed  the 
subject  of  consideration  in  a  previous  chapter,  in  another  rela 
tion,  presents  less  difficulty ;  that  is,  where  submission  of  the 
Constitution  to  the  people  is  expressly  required  by  law.  If  the 
Constitution  contained  provisions  to  that  effect,  probably  no  one 
would  be  hardy  enough  to  maintain  that  there  could  be  any 
alternative  to  obedience  but  revolution.  And  if  it  prescribed 
special  modes  or  forms,  it  is  presumed  no  power  would  be 
thought  competent  to  dispense  with  a  punctilious  conformity 
to  its  terms.1  It  is  only  in  relation  to  Acts  of  the  legislature 
that  question'  could  arise.  Would  a  Convention  be  bound  by 
the  Act  under  which  it  assembled,  without  regard  to  its  own 
views  of  propriety  or  necessity,  to  submit  the  product  of  its 
deliberations  to  the  people,  if  the  Act  required  it  ?  As  this 

1  In  the  Ohio  Constitution  of  1851,  and  in  the  West  Virginia  Constitution  of 
1863,  provisions  are  inserted  declaring  amendments  to  those  instruments  to  be 
of  no  force  unless  submitted  to  the  people. 


442  SUBMISSION   OP   CONSTITUTIONS. 

question  has  already  been  the  subject  of  consideration,  to  some 
extent,  in  a  preceding  chapter,1  it  is  necessary  here  only  to  indi 
cate  briefly  the  arguments  which  were  there  adduced. 

§  483.  The  Act  of  Assembly  under  which  a  Convention  meets, 
is  its  charter.  Whatever,  not  inconsistent  with  the  Constitution 
or  the  principles  of  the  Convention  system,  the  former  prescribes, 
the  latter  must  do.  It  is  the  law,  passed  by  the  competent 
law-making  power,  within  the  limits  that  bound  its  jurisdiction. 
What  is  a  Convention,  that  it  should  assume  to  be  exempt 
from  obedience  to  that  department  of  the  government  which  is 
charged  with  higher  sovereign  attributes  —  is  more  nearly  sov 
ereign  —  than  any  other  in  it  ?  Does  it  claim  to  be  itself  above 
the  legislature  ?  Let  it  show  its  warrant  for  a  claim  so  exorbi 
tant,  for  upon  it  must  rest  the  burden  of  proving  what  contra 
dicts  all  political  analogies,  and  the  first  principles  of  constitu 
tional  government.  It  cannot  find  that  warrant  in  the  mandate 
of  the  power  by  whose  fiat  it  came  into  being,  for,  by  hypothesis, 
that  is  expressly  to  the  contrary.  It  cannot  find  it  in  claims  set 
up  by  Conventions,  and  allowed  by  the  people,  in  the  best  days 
of  the  Republic,  for,  with  scarcely  an  exception,  during  that 
happy  period,  when  party  conflict  had  not  succeeded  in  pervert 
ing  our  statesmen  into  mere  politicians,  it  was  universally  con 
ceded,  that  the  Convention  was  the  child  of  the  law,  and,  as 
such,  bound  to  obe.y  literally  its  requirements.  Nor  can  a  war 
rant  for  the  claim  be  found  in  the  principles  which  preside  over 
the  genesis  and  healthy  growth  of  free  communities,  for  those 
principles,  as  we  have  seen  above,  require  Conventions  to  rank 
themselves  as  the  servants,  not  the  masters  of  the  people ;  and 
when  the  will  of  the  people  is  known,  to  conform  themselves 
scrupulously  to  it ;  but  when  it  is  unknown,  to  presume  that  to 
be  required  of  them  which  most  conduces  to  the  safety  of  the 
Commonwealth. 

§  484.  III.  The  third  case,  —  that  in  which  submission  is  ex 
pressly  dispensed  with,  and  the  Convention  authorized  or  required 
to  put  the  Constitution  into  operation  without  referring  it  to  the 
people, — would  seem  to  present  less  occasion  for  doubt.  The 
case  has  not  very  frequently  arisen,  but,  so  far  as  I  am  aware, 
Conventions  have  never  questioned,  either  the  competence  of 
the  legislature  so  to  provide,  or  their  own  right  and  duty  to  obey, 
i  See  ante,  §§410-417. 


SUBMISSION   OP    CONSTITUTIONS.  443 

It  is  only  when  our  General  Assemblies  have  imposed  restric 
tions  upon  them,  that  Conventions  have  been  disinclined  to 
recognize  their  right  to  command.  Precedents  of  the  exercise 
of  such  a  power  have,  as  we  shall  soon  see,  arisen,  sometimes 
with  and  sometimes  without  special  legislative  authorization. 
Perhaps,  therefore,  the  question  whether  such  a  body  can  right 
fully  obey  a  command  of  the  legislature  requiring  it  to  act  defin 
itively,  ought  not  to  be  regarded  as  an  open  one.  And  it  may 
be,  that  no  very  serious  exception  could  be  taken  on  principle 
to  an  Act  containing  such  a  provision,  provided  the  precaution 
had  been  employed  to  take  upon  it  in  advance  the  sense  of 
the  people.  This  might  be  accomplished  in  two  ways :  first, 
by  proposing  the  Convention  Act  in  one  legislature,  and  laying 
it  over  to  be  finally  acted  on  by  a  succeeding  one,  in  the  mean 
time  publishing  it  and  calling  to  it  the  public  attention  ;  or,  sec 
ondly,  by  actually  submitting  to  a  vote  of  the  people  the  ques 
tion  of  calling  a  Convention.  Of  these  two  modes,  either  of 
which  would  fulfil  the  conditions  requisite  for  the  public  safety, 
the  second  is  unquestionably  the  preferable  one,  and  it  has  the 
high  sanction  of  the  New  York  Council  of  Revision,  in  1820, 
of  which  Governor  Clinton,  Chancellor  Kent,  and  the  judges  of 
the  Supreme  Court,  were  members.  The  majority  of  this  Coun 
cil,  deeming  it  "  most  accordant  with  the  performance  of  the 
great  trust  committed  to  the  representative  powers,  under  the 
Constitution,  that  the  question  of  a  general  revision  of  it  should 
be  submitted  to  the  people,  in  the  first  instance,  to  determine 
whether  a  Convention  ought  to  be  convened,"  vetoed  a  bill  pro 
viding  for  a  call  of  a  Convention,  which  had  been  passed  by  the 
legislature,  on  the  single  ground  that  it  did  not  propose  to  sub 
mit  the  question  to  the  people.1  The  same  principles  that  govern 
the  call  of  a  Convention,  ought,  evidently,  to  apply  to  a  grant 
to  such  a  body  of  unusual  powers  in  the  Act  by  which  it  is 
called.  It  does  not  admit  of  a  doubt  that  the  safest  and  wisest 
course,  in  one  case  no  less  than  in  the  other,  would  be  to  submit 
the  questions  referred  to  to  the  determination  of  the  people. 

§  485.  But,  suppose  there  has  been  no  submission  to  the  peo 
ple,  no  means  used  to  collect  their  opinion  upon  the  question, 
aside  from  precedents,  would  the  legislature  then  be  competent 
to  authorize  definitive  action  by  a  Convention,  or  the  latter  be 
empowered  to  take  it  ?  The  answer  must  be  in  the  negative. 
1  For  this  veto,  see  post,  Appendix  B. 


444  SUBMISSION   OF   CONSTITUTIONS. 

1.  When  a  legislature  calls  a  Convention,  without  the  spe 
cial  authorization  of  the  Constitution,  it  steps  to  the  very  verge 
of  its  power.  It  does  an  act  which,  as  it  can  show  no  express 
warrant  for  it,  it  can  justify  only  on  the  ground  that  it  was  a 
necessity,  and  that  it  was  itself  the  only  department  of  the  gov 
ernment  clearly  not  incompetent  to  do  it.  But  an  Act  which 
can  be  justified  only  by  necessity,  must  conform  to  that  neces 
sity  in  its  character  and  limitations ;  so  far  as  it  goes  beyond  it, 
the  Act  is  unnecessary,  and,  therefore,  unjustifiable.  If  the  call 
ing  of  a  Convention  is  necessary,  it  certainly  is  not  necessary  to 
call  it  in  such  a  way  as  to  make  of  it  a  despot  —  to  let  it  loose 
upon  the  community  without  check  against  the  assumption  of 
dangerous  powers.  A  legislature  may  always  prescribe  that 
a  Convention  shall  content  itself  with  proposing,  and  that  to  its 
propositions  there  shall  be  communicated  the  force  of  law  only 
by  the  fiat  of  the  people.  What  is  practicable  under  such  condi 
tions,  is  to  be  taken  as  the  measure  of  its  duty,  and  it  is  as  binding 
on  that  body  as  though  it  had  been  expressly  embodied  in  the 
Constitution. 

§  486.  2.  If,  on  the  other  hand,  the  Constitution,  like  most  of 
our  later  ones,  were  to  authorize  the  legislature,  in  general  terms, 
"  to  call  a  Convention,"  and,  if  in  doing  so,  that  body  were  to 
insert  in  its  Act  a  provision  permitting  the  latter  to  frame  and 
put  in  force  a  Constitution,  without  submission,  would  the  legis 
lature  exceed  its  power,  or  would  the  Convention  be  warranted 
in  availing  itself  of  the  permission  ?  Laying  the  precedents 
referred  to  out  of  sight,  the  answer  must  still  be  in  the  negative, 
and  for  substantially  the  reasons  above  given.  Although,  from 
the  generality  of  the  constitutional  provision,  power  might  prop 
erly  be  inferred  in  calling  a  Convention,  to  exhaust  the  catego 
ries  of  time,  place,  and  mode  of  assembling,  organizing,  and 
proceeding,  as  well  as  to  fill  out  the  outlines  of  ah  expedient 
limitation  of  its  powers,  with  a  view  to  the  safety  of  the  state 
and  the  facilitation  of  its  business  —  such  details  being  author 
ized  as  fairly  implied  in  the  general  grant  of  power  to  call  the 
Convention  —  nothing  is  authorized  which  is  not  thus  implied, 
or  which  is  opposed  to  the  spirit  of  republican  institutions. 

If  I  have  not  misconceived,  then,  the  considerations  bearing 
upon  the  question,  it  is  the  duty  of  Conventions,  in  all  cases, 
not  even  excepting  that,  perhaps,  in  which  they  are  authorized 


PRECEDENTS   RELATING   TO    SUBMISSION.  445 

to  act  definitively,  to  submit  the  Constitutions  they  frame  to 
the  people ;  certainly  to  do  so,  whenever  submission  is  not  ex 
pressly  dispensed  with  by  the  Constitution,  or  by  the  Convention 
Act. 

§  487.  Let  us  now  see  to  what  extent  the  precedents  ha've 
conformed  to  what  I  have  announced  as  the  theoretical  princi 
ples  relating  to  the  submission  of  Constitutions  ;  that  is,  of  the 
Conventions  which,  since  the  foundation  of  our  government, 
have  been  concerned  in  framing  Constitutions,  or  parts  of  Con 
stitutions,  how  many  have,  and  how  many  have  not,  submitted 
them  to  the  people? 

I  have,  in  this  work,  generally,  for  the  sake  of  completeness 
of  view,  reckoned  as  Conventions  all  bodies  which  have  framed 
or  ratified  Constitutions  or  parts  of  Constitutions,  either  for  the 
Union,  or  for  States,  now  members  of  the  Union,  as  well  as  a 
few  which  have  met  for  that  purpose,  but  have  failed  to  effect 
it.  As  thus  defined,  the  list  of  those  bodies  thus  far  held  in 
the  United  States,  comprises  one  hundred  and  fifty-two  Con 
ventions.1 

From  this  list,  for  our  present  purpose,  must,  of  course,  be 
struck  out,  first,  those  Conventions  which  have  been  called  sim 
ply  to  ratify  propositions  made  by  other  Conventions  or  by  bodies 
having  functions  analogous  to  those  of  Conventions,  twenty-eight 
in  number;2  and,  secondly,  such  as  have  proved  abortive  —  hav 
ing  met  and  adjourned  without  maturing  any  amendments  to 
the  fundamental  code  —  six  in  number.3  There  would  then  re 
main  one  hundred  and  eighteen  Conventions.  Of  these,  seventy- 

1  See  post,  Appendix  A.,  for  a  full  exhibit  of  these  Conventions,  in  which  are 
distinguished  those  which  did,  from  those  which  did  not,  submit  their  work  to 
the  people. 

2  They  were  the  following  State  Conventions,  held,  first,  to  ratify  the  Federal 
Constitution,  viz. :  those  of  Pennsylvania,  Delaware,  New  Jersey,  and  Georgia, 
1787  ;  of  New  Hampshire,  South  Carolina,  Virginia,  North  Carolina,  New  York, 
Massachusetts,  Connecticut,  and  Maryland,  1 788  ;  that  of  North  Carolina  (the 
second),  1789  ;  that  of  Rhode  Island,  1790  ;  and  that  of  Vermont,  1791  ;  —  sec 
ond,  to  ratify  State  Constitutions,  or  parts  of  Constitutions,  either  formed  by 
previous  Conventions,  or  dictated  by  Congress,  viz.:   those  of  Vermont,  1786, 
1793,  1822,  1828,  1836,  1843,  1850,  and  1857;  those  of  Georgia,  1789  (two 
Conventions) ;  those  of  Michigan,  1836  (two  Conventions) ;  and  that  of  Iowa, 
1846. 

3  These  were  the  Councils  of  Censors  of  Pennsylvania,  1 783,  and  of  Ver 
mont,  1799,  1806,  1813,  and  1862;  and  the  Rhode  Island  Convention,  of  1834. 


446  PRECEDENTS   RELATING   TO    SUBMISSION. 

eight  have  submitted  the  fruit  of  their  labors  to  the  people,1  and 
forty  have  not.2 

§  488.  From  this  exhibit,  it  is  evident  that  the  prevailing  sen 
timent  of  the  country,  from  the  earliest  times,  has  favored  the 
submission  of  Constitutions  to  the  people.  That  such  has  been 
the  general  feeling  is  confirmed  by  an  examination  into  the 
political  situation  and  opinions  of  our  fathers,  at  different  times 
during  our  history,  and  into  the  particular  circumstances  attend 
ing  those  cases  in  which  submission  has  not  been  made,  to 
those  of  which  most  directly  bearing  on  the  point  under  discus 
sion,  a  short  space  will  be  devoted. 

The  science  of  politics,  as  specially  adapted  to  our  system  of 
republics,  scarcely  existed  at  the  time  that  system  originated. 
American  statesmen  were  doubtless  well  acquainted  with  the 
principles  of  freedom  as  developed  in  English  institutions,  and 
were  thus,  in  a  general  way,  prepared  for  the  new  development 
of  them  about  to  manifest  itself  in  America.  But  the  task  of 

i  The  names  and  dates  of  the  submitting  Conventions  are  as  follows :  — 

1.  Such  as  framed  first  Constitutions: — Those  of  the  United  States,  1775- 
81;  Massachusetts,  1778;  Kentucky,  1792;  Tennessee,  1796;  Ohio,  1802;  Loui 
siana,  1812;  Indiana,  1816;  Mississippi,  1817;  Illinois,  1818;  Alabama,  1819  ;( 
Maine,  1819;  Missouri,  1820;  Michigan,  1835  ;  Arkansas,  1836  ;  Florida,  1839  ; 
Iowa,  1844;  Texas,  1845;  Wisconsin,  1846;  California,  1849;  Kansas,  1355, 
1857,  and  1859;  Minnesota  and  Oregon,  1857;  West  Virginia,  1863;  and  Ne 
vada,  1863  and  1864. 

2.  Such  as  were  revising  Conventions: —  Those  of  Massachusetts,  1779,  1820, 
1853;  New  Hampshire,  1778,  1781,  1791,1850;  Vermont,  1785,  1792,  1820, 
1827,  1834,  1841,  1848,  1855  ;  United  States,  1787  ;  Georgia,  1788,  1838;   Con 
necticut,  1818;  New  York,  1821,  1846;  Rhode  Island,  1824,  1841  (two  Con 
ventions),  1842;  Virginia,  1829,  1850,  1861;    Tennessee,   1834,   1861,  1865; 
North   Carolina,   1835;    Pennsylvania,   1837;   New   Jersey,   1844;   Louisiana, 
1844,  1852,  1864;  Missouri,  1845,  1865;  Wisconsin,  1847;  Illinois,  1847.  1862; 
Kentucky,  1849;  Ohio,  Indiana,  and  Michigan,  1850:  Maryland,  1850,  1864; 
Delaware,  1852;  Iowa,  1857;  and  Texas,  1861. 

-<i  The  non-submitting  Conventions  are  the  following :  — 

1.  Such  as  framed  first    Constitutions:  —  That  of  New  Hampshire,   1775; 
those  of  South  Carolina,  Virginia,  New  Jersey,  Delaware,  Pennsylvania,  North 
Carolina,  Georgia,  New  York,  and  Maryland,  1776 ;  and  that  of  Vermont,  1777. 

2.  Such  as  were  revising  Conventions:  —  Those  of  South   Carolina,  1777, 
1790,  1861,  1865;  Pennsylvania,  1789;  Delaware,  1792,  1831  ;  Georgia,  1795, 
1798,  1861,  1865;  Kentucky,  1799;  New  York,  1801;  Mississippi,  1832,  1861, 
1865;  Louisiana,  1861;  Missouri,  1861;   Arkansas,  1861,  1864;   North  Caro 
lina,  1861,  1865;  Alabama,  1861,  1865;  Florida,  1861,  1865;  Virginia,  1861, 
(Reconstruction),  1864;  and  Texas,  1866. 


PRECEDENTS   RELATING   TO    SUBMISSION.  447 

the  statesman  then  was  to  apply  old  principles  to  a  wholly  new 
situation  —  always  a  work  of  difficulty,  in  which  much  must  be 
trusted  to  time  and  experience.  Of  all  the  prominent  statesmen 
of  the  Revolution,  John  Adams  seemed  best  and  earliest  to  fore 
cast  the  form  our  institutions  must  assume,  as  well  as  their 
foundation  and  peculiar  spirit.  He  saw  that  a  republic  alone 
would  satisfy  the  wishes  or  harmonize  with  the  genius  of  our 
people,  and  he  was  wise  enough  and  fortunate  enough  to  point 
out  seasonably  and  with  great  precision  the  method  in  which 
the  edifice  of  government,  in  the  several  States,  must  be  erected. 
He  was  convinced  it  must  be  founded  upon  the  people,  by  the 
people,  and  for  the  people.  "  I  had  looked,"  he  says,  "  into  the 
ancient  and  modern  confederacies  for  examples,  but  they  all  ap 
peared  to  me  to  have  been  huddled  up  in  a  hurry  by  a  few 
chiefs.  But  we  had  a  people  of  more  intelligence,  curiosity,  and 
enterprise,  who  must  be  all  consulted ;  and  we  must  realize  the 
theories  of  the  wisest  writers,  and  invite  the  people  to  erect  the 

whole  building  upon  the  broadest  foundations This 

could  only  be  done  by  Conventions  of  representatives  chosen  by 
the  people  in  the  several  colonies,  in  the  most  exact  proportions. 
It  was  my  opinion  that  Congress  ought  now  "  (1775)  "  to  rec 
ommend  to  the  people  of  every  colony  to  call  such  Conventions 
immediately,  and  set  up  governments  of  their  own,  under  their 
own  authority ;  for  the  people  were  the  source  of  all  authority, 
and  original  of  all  power."  l 

§  489.  These  views,  so  mature  for  that  early  day,  were,  in 
most  respects,  adopted  and  carried  into  effect  by  the  several 
colonies.  As  we  saw  in  a  former  chapter,  a  scheme  of  a  Con 
stitution,  suitable,  in  the  author's  opinion,  for  the  incipient 
States,  was  prepared  and  extensively  circulated  by  Mr.  Adams, 
during  the  winter  and  spring  preceding  the  general  framing  of 
Constitutions  that  took  place  in  1776.  To  this  fact  is  doubtless 
due  much  of  the  family  likeness  apparent  in  the  Constitutions 
that  afterwards  appeared.  But  circumstances  prevented,  in 
nearly  all  the  colonies,  a  strict  conformity  to  the  spirit  of  Mr. 
Adams'  recommendation  ;  though  they  called  Conventions, 
they  did  not  always  consult  the  people  in  relation  to  the  Con 
stitutions  they  matured.  In  many  of  these  colonies  no  submis 
sion  was  made  to  the  people,  because  it  was  not,  by  the  friends 
1  Adams'  Works,  Vol.  III.  p.  16. 


448  PRECEDENTS   RELATING   TO   SUBMISSION. 

of  the  Revolution,  deemed  safe  to  submit,  though  the  propriety 
of  such  a  step,  in  general,  seems  not  to  have  been  denied. 
While  the  Convention  of  New  York  was  in  session,  the  enemy 
were  actually,  in  large  force,  invading  that  and  the  adjoining 
State  of  Vermont,  whose  Convention  was  also  in  session  about 
the  same  time.  In  those  States,  therefore,  for  that  reason,  it 
was  thought  to  be  perilous  to  attempt  to  take  upon  their  re 
spective  Constitutions  a  vote  of  the  people.  Not  only  was 
there  danger  from  the  public  enemy,  but  the  enemy  within  was, 
in  both  States,  numerous,  and,  in  organizing  the  new  govern 
ments,  might  occasion  serious  embarrassment,  if  their  establish 
ment  were  made  dependent  upon  an  affirmative  vote  of  the 
whole  people.  Their  first  Constitutions  were,  therefore,  put  in 
operation  by  Ordinances  of  their  Conventions  alone. 

§  490.  This  action  of  their  Conventions,  however,  seems  not 
to  have  met  with  entire  approval,  at  least  in  Vermont,  whose 
people  were  not  satisfied  that  a  Constitution  thus  adopted  pos 
sessed  the  force  of  law.  As  we  have  seen,  accordingly,  in  a 
previous  chapter,  the  General  Assembly  of  that  State  endeav 
ored,  by  two  separate  Acts,  passed  in  different  years,  to  impart 
to  their  fundamental  law  the  validity  which  it  was  supposed  to 
lack.  This  incident  shows  two  things :  first,  that  a  very  general 
distrust,  founded  on  a  considerable  knowledge  of  safe  political 
principles,  prevailed  in  relation  to  the  validity  of  the  Constitu 
tion  ;  and  second,  that,  at  the  same  time,  the  views  of  the  peo 
ple  in  reference  to  the  relations  of  the  legislature  to  the  Consti 
tution,  under  which  it  assembled,  were  very  immature.  The 
first  Constitution  of  New  Hampshire  had,  in  like  manner,  been 
put  in  operation  by  the  Convention  which  framed  it,  though  all 
the  subsequent  revisions  of  it,  of  which  there  have  been  several, 
have  been  submitted.  The  same  causes  probably  operated  to 
cause  the  first  Constitution  to  be  withheld  from  submission,  as 
in  the  States  above  named;  and  they,  doubtless,  had  their  influ 
ence,  generally,  during  the  Revolution.  The  Tory  party  was 
strong  enough  in  all  the  States  to  occasion  serious  embarrass 
ment,  in  case  a  vote  should  be  taken  to  determine  upon  the 
establishment  of  a  new  government  independent  of  the  crown  ; 
and  in  some  of  the  States  it  was  a  matter  of  doubt  whether  it 
might  not  outnumber  the  friends  of  independence.  Conse 
quently,  of  the  first  Constitutions  framed  prior  to  the  ratification 


PRECEDENTS  RELATING  TO   SUBMISSION.  449 

of  peace  with  England,  none  were  submitted  except  that  of 
Massachusetts,  framed  in  1778.  .  This  Constitution,  however, 
was  rejected  by  the  people,  and  it  was  not  until  two  years  later 
that  the  leading  Northern  State  was  enabled  to  frame  for  her 
self  a  satisfactory  fundamental  code.  Her  first  failure,  however, 
furnished  striking  evidence  of  the  existence  amongst  her  people 
of  sound  practical  views  of  Constitution-making,  since  that 
failure  resulted  from  dissatisfaction  with  the  mode  in  which  the 
proposed  Constitution  had  been  concocted.  The  Constitution 
of  1778,  as  stated  in  a  former  chapter,  was  framed  by  a  com 
mittee  of  the  legislature,  appointed  in  1777,  and  on  being  sub 
mitted  to  the  people,  was,  for  that  reason  alone,  rejected  by  an 
overwhelming  vote  —  the  people  of  that  Commonwealth  deem 
ing  the  General  Court,  as  the  legislature  was  called,  unauthor 
ized  to  take  the  step  indicated.  Afterwards,  a  Convention 
was,  in  a  regular  and  formal  manner,  called  by  the  General 
Court,  by  which  the  Constitution,  known  as  that  of  1780,  was 
framed. 

§  491.  Two  Conventions,  classed  with  non-submitting  Con 
ventions, —  those  of  South  Carolina  of  1777,  and  of  Pennsyl 
vania  of  1789,  —  might,  perhaps,  without  impropriety,  have 
been  classed  with  those  which  submitted  their  work  to  the  peo 
ple.  The  legislature  of  South  Carolina,  which  met  in  January, 
1777,  having  been  elected  with  the  understanding  that  it  should 
revise  the  Constitution  of  1776,  proceeded  at  its  first  session  to 
perform  that  duty.  Though,  by  the  tenor  of  its  commission, 
that  body  might  have  deemed  itself  authorized  to  enact  its  pro 
posed  Constitution  at  once,  without  in  any  manner  taking  the 
sense  of  the  people  in  relation  to  it,  it  did  not  do  so.  It  ma 
tured  the  instrument,  and  delayed  the  formal  act  of  adopting  it 
for  a  whole  year,  in  the  mean  time  publishing  it  for  the  consider 
ation  of  the  people  at  large.1  "  From  the  general  approbation 
of  the  inhabitants,  the  new  Constitution  received,"  as  was  be 
lieved,  "  all  the  authority  which  could  have  been  conferred  on 
the  proceedings  of  a  Convention  expressly  delegated  for  the 
purpose  of  framing  a  form  of  government."2  And,  had  the 
body  by  which  it  was  finally  adopted  been  elected  during  the 
year  following  its  publication,  with  a  view  to  its  ratification  or 

1  Ramsay,  History  of  the  Revolution  of  South  Carolina,  pp.  128,  129. 

2  Ibid. 

29 


450  PRECEDENTS   RELATING    TO    SUBMISSION. 

rejection,  there  would  have  been  a  substantial  submission  of  it 
to  the  people.  As  it  was,  there  was  the  possibility  that  a  body, 
wedded  naturally  to  its  own  views  of  the  public  necessities,  em 
bodied  in  its  project  of  a  Constitution,  would  fail  accurately,  by 
its  intercourse  with  the  people,  to  gather,  or  would  refuse  to 
obey,  the  public  will. 

The  course  of  the  Pennsylvania  Convention  was,  in  respect 
of  submission,  similar,  though,  on  the  whole,  more  exception 
able  than  that  of  South  Carolina.  In  the  resolutions  by  which 
it  was  convened,  there  was  a  clause  declaring  it  to  be,  in  the 
opinion  of  the  legislature,  expedient  "  that  the  Convention 
should  publish  their  amendments  and  alterations  for  the  consid 
eration  of  the  people,  and  adjourn  at  least  four  months  previous 
to  confirmation."  1  In  obedience  to  this  suggestion,  the  Con 
vention  matured  a  Constitution  toward  the  close  of  February, 
1790,  and  adjourned  over  to  the  9th  of  August  following,  publi 
cation  of  the  same  being  in  the  mean  time  made  in  the  news 
papers.  On  the  day  last  named,  the  body  again  assembled,  and, 
after  a  session  of  twenty-four  days,  finally  adopted  the  Consti 
tution  of  1790.  Thus  there  was  the  semblance  of  taking  the 
sense  of  the  people  upon  the  Constitution,  and,  perhaps,  a 
virtual  submission  to  them  of  that  instrument.  But,  how  far  it 
fell  short  of  what  a  submission  ought  to  be,  is  evident  from  the 
fact,  that  after  the  Convention  assembled  the  second  time,  it 
spent  twenty- four  days  in  reviewing  and  amending  the  instru 
ment  upon  which  the  people  had  been  informally  consulted. 
What  changes  the  people  as  a  whole  desired  in  the  scheme  as 
published  was  not,  and  could  not  be,  accurately  known,  nor, 
consequently,  whether  the  delegates  obeyed  or  disobeyed  the 
public  voice.  Both  cases,  therefore,  have  been  set  down  as 
those  in  which  Conventions  did  not  submit  their  work  to  the 
people. 

§  492.  Of  the  reasons  inducing  the  Conventions  of  South 
Carolina,  held  in  1790 ;  those  of  Delaware  in  1792  and  1831 ; 
those  of  Georgia  in  1795  and  1798 ;  that  of  Kentucky  in  1799; 
and  that  of  Mississippi  in  1832,  to  withhold  the  Constitutions 
framed  by  them  from  submission  to  the  people,  I  am  not  ad 
vised.  In  relation  to  the  New  York  Convention  of  1801,  it 
may  be  said,  that  the  objects  of  calling  that  body  were,  —  first, 
1  Conventions  of  Pennsylvania,  p.  134. 


PRECEDENTS   RELATING   TO    SUBMISSION.  451 

to  reduce  the  number  of  senators  and  representatives  in  the 
General  Assembly ;  and,  secondly,  to  determine  the  true  con 
struction  of  the  twenty-third  Article  of  the  Constitution  relative 
to  the  right  of  nomination  to  office.  From  the  language  of  the 
Act  calling  the  Convention,  it  is  obvious  that  submission  of  its 
determinations  was  not  only  not  expected,  but  was  virtually 
dispensed  with.  Without  raising  again  the  question  as  to  the 
power  of  the  legislature  thus  to  authorize  the  Convention  to  act 
definitively,1  it  is  clear  that  the  case  must  be  ranked  as  an  ex 
ceptional  one,  so  far  as  relates  to  the  question  of  submission, 
and  can  form  no  precedent  for  cases  in  which  the  circumstances 
should  be  different. 

§  493.  Of  the  forty  non-submitting  Conventions,  the  nineteen 
which  remain  are  the  Missouri  Convention,  whose  sessions  ran 
through  the  years  1861,  1862,  1863,  and  the  so-called  Secession 
and  Reconstruction  Conventions,  held  in  1860,  1861, 1864, 1865, 
and  1866. 

The  force  of  these  cases  as  precedents  is  broken  by  the  very 
peculiar  circumstances  which  attended  the  call  of  those  Conven 
tions.  It  is  unnecessary  to  rehearse  here  a  history  familiar  to 
every  reader.  The  States  in  which  those  Conventions  assem 
bled  were  in  a  thoroughly  revolutionary  condition.  To  this 
remark  the  State  of  Missouri,  in  the  period  covering  the  exist 
ence  of  the  Convention  of  1861,  is  no  exception.  Indeed,  there 
is  probably  no  doubt  that  that  body  was  called  in  the  interest  of 
the  Secession  faction,  and  that,  but  for  the  determined  stand 
taken  by  the  Union  majority,  it  would  have  carried  the  State, 
so  far  as  a  State  can  be  carried,  out  of  the  Union.  Respecting 
the  thoroughly  revolutionary  condition  of  the  other  States,  both 
at  the  date  of  their  secession  and  at  that  of  their  reconstruction, 
there  is  no  question,  though  at  the  latter,  the  hostile  majority  in 
the  several  States,  under  the  overwhelming  pressure  of  the 
Union  arms,  was  sullenly  acquiescent.  Besides,  at  the  date  of 
the  reconstruction  Conventions,  the  electoral  machinery  was  out 
of  order,  and  the  need  of  a  reestablishment  of  the  State  organ 
izations  too  urgent  to  admit  of  the  delay  necessary  for  submis 
sion.  All  these  reasons  operated  to  prevent  those  Conventions 
from  submitting  their  work  to  the  people.  In  the  cases  of  the 
Secession  Conventions,  moreover,  there  was  doubtless  an  ap- 
l  On  this  question  see  §§  484-487,  ante. 


452  PRECEDENTS   RELATING   TO   SUBMISSION. 

prehension  that  the  bulk  of  the  people,  being  unripe  for  the 
work  of  destroying  the  Union,  might  outvote  those  who  were 
in  the  conspiracy  to  effect  it. 

Admitting,  however,  for  the  sake  of  the  argument,  that  the 
Conventions  held  in  the  seceding  States,  in  the  years  mentioned, 
were  regular,  they  were  held  in  exceptional  circumstances ;  and 
the  fact  that  they  found  it  inexpedient  or  impossible  to  submit 
their  work  to  the  people,  is  clearly  no  precedent  for  non-sub 
mission  in  times  of  peace  and  constitutional  order.  "  The  ex 
treme  medicine  of  the  Constitution,"  as  wisely  hinted  by  Burke, 
ought  not  to  be  made  "  its  daily  bread." 

§  494.  Two  peculiarities  in  the  mode  of  submission  practised 
in  certain  cases  will  now  be  noticed. 

By  the  forty-third  section  of  the  Vermont  Constitution  of 
1777,  provision  was  made  for  the  election,  every  seven  years,  of 
a  Council  of  Censors,  of  thirteen  members,  one  of  whose 
powers  should  be  to  call  a  Convention,  to  meet  within  two 
years  after  their  sitting,  if  there  appeared  to  them  an  absolute 
necessity  of  amending  any  Article  of  the  Constitution.  It  was 
further  provided,  that  the  Articles  to  be  amended,  and  the 
amendments  proposed,  and  such  Articles  as  were  proposed  to  be 
added  or  abolished,  should  be  promulgated  at  least  six  months 
before  the  day  appointed  for  the  election  of  such  Convention, 
for  the  previous  consideration  of  the  people,  that  they  might 
have  an  opportunity  of  instructing  their  delegates  on  the 
subject. 

Here  a  Council  of  thirteen  matured  the  proposed  amend 
ments,  and  the  Convention  was  charged  with  the  duty  merely 
of  passing  upon  them  such  a  judgment  as  the  people  should 
have  instructed  them  to  do,  or  as  the  delegates  should  deem 
most  accordant  with  the  general  voice.  Such  a  mode  of  sub 
mission  is  the  same  in  its  general  character  as  that  commonly 
adopted,  where,  as  we  shall  see,  the  whole  body  of  the  electors 
are  called  upon  to  adopt  or  reject  amendments  to  the  Constitu 
tion.  The  only  difference  is  that,  in  Vermont,  the  electors 
choose  a  body  of  delegates  to  do  for  them,  and  in  their  names, 
what  elsewhere  is  done  by  the  electors  directly.  Considering 
the  dangers  of  faction  and  corruption,  always  greater  in  small 
than  in  large  bodies  of  men,  there  can  be  no  doubt  that,  al 
though  the  Vermont  mode  is  theoretically  unexceptionable, 


PRECEDENTS   RELATIVE   TO    SUBMISSION.  453 

practically  it  is  less  to  be  commended  than  the  one  with  which 
it  is  contrasted. 

§  495.  The  remaining  case,  presenting  peculiarities  in  the 
mode  of  submission,  is  that  of  Territories  framing  their  first 
Constitutions,  preparatory  to  entering  the  Union  as  States. 
These  are  commonly,  but,  as  I  am  confident,  erroneously,  cited 
as  cases  of  non-submission.  Assuming,  for  the  present,  that  it 
is  to  the  people  —  the  sovereign  —  that  Constitutions  ought  to 
be  submitted,  the  question,  To  whom,  in  particular,  should 
those  framed  for  Territories  be  submitted  ?  admits  of  a  ready 
answer.  The  sovereign  authority  in  the  Territories  is  the  peo 
ple  of  the  United  States.  When  a  Constitution,  then,  is  framed 
for  a  Territory,  if  submitted  at  all,  it  should  be  to  the  people  of 
the  United  States,  in  some  one  of  the  ways  recognized  as 
proper  for  ascertaining  its  will.  The  best  way,  as  we  have 
shown,  would  doubtless  be  to  take  a  vote  upon  the  question 
of  the  electors  throughout  the  Union ;  but  the  practice  of  the 
government,  under  the  Constitution  of  the  United  States,  has 
been  uniformly  to  leave  the  adoption  or  rejection  of  a  Territorial 
Constitution  to  the  Congress  of  the  United  States,  the  principal 
representative  of  the  general  sovereignty  of  the  Union.  This 
seems,  implicitly  at  least,  to  be  required  by  those  clauses  of  the 
Constitution  which  provide  that  "  new  States  may  be  admitted 
by  Congress  into  this  Union,"  and  that  "  the  United  States 
shall  guarantee  to  every  State  in  this  Union  a  republican  form 
of  government."1  Beside  this,  which,  in  my  judgment,  is  the 
normal  and  sufficient  mode  of  submission,  another  has  of  late 
years  come  into  use  in  these  cases.  In  all,  or  nearly  all,  the 
enabling  Acts  of  Congress  authorizing  Conventions  in  Terri 
tories  of  the  United  States,  passed  since  the  troubles  in  1855-9 
in  Kansas,  a  clause  has  been  introduced  requiring  those  bodies 
to  submit  the  Constitutions  framed  by  them  to  the  inhabitants 
of  the  respective  Territories.  This  course,  though  theoretically 
not  requisite,  is  highly  proper,  since  otherwise  Constitutions 
might  be  forced  upon  Territories  by  packed  Contentions,  in 
league  with  the  majority  of  Congress,  to  which  the  people  to  be 
governed  by  them  were  hostile.  It  is  to  be  understood,  how 
ever,  that  the  adoption  of  this  mode  is  not  obligatory  upon 
Congress,  and  that  the  action  of  the  territorial  inhabitants  is 
i  Const.  U.  S.,  Art.  IV.  §§  3,  4. 


454         BY  WHOM  SUBMISSION  SHOULD  BE  MADE. 

petitory  only,  the  power  of  absolute  disposition  remaining  in 
Congress.  It  is  not  probable  that  the  latter  would,  after  the 
events  which  occurred  in  Kansas,  ever  sanction  a  Constitution 
condemned  by  a  vote  of  a  majority  of  the  inhabitants  of  the 
Territory  fairly  taken. 

§  496.  Having  thus  considered  the  importance  of  submission 
in  general,  and  the  extent  to  which  it  has  been  practised  in  our 
constitutional  history,  it  is  proper  now  to  inquire  what  is  in 
volved  in  the  term  "submission." 

The  term  "  submission,"  considered  as  designating  a  politi 
cal  act,  involves,  according  to  the  point  of  view  from  which  it  is 
regarded,  two  distinct  though  related  conceptions :  first,  that  of 
something  to  be  done  by  the  submitting  body;  and,  secondly, 
that  of  something  to  be  done  by  those  to  whom  it  is  sub 
mitted.  To  an  adequate  exposition  of  the  subject,  it  is  neces 
sary  that  each  of  these  conceptions  should  be  analyzed,  and  its 
several  features  separately  considered ;  and  this,  I  think,  may  be 
conveniently  done  by  discussing  in  their  order  the  following 
subjects :  — 

I.  By  whom  the  particular  regulations  necessary  for  submit 
ting  Constitutions  ought  to  be  made. 

II.  To  whom  they  ought  to  be  submitted. 

III.  The  nature  of  the  act  performed  by  the  person  or  body  to 
whom  submission  is  made. 

IV.  In  what  manner  Constitutions  should  be  submitted. 

V.  The  final  proclamation   or  announcement  by  which  the 
act  of  submission  is  crowned  or  consummated. 

§  497.  I.  In  reference  to  the  body  by  whom  the  regulations 
for  submitting  Constitutions  ought  to  be  made,  it  seems,  laying 
out  of  view  all  questions  of  convenience  or  economy,  that  the 
most  proper  body  is  that  by  which  the  Convention  is  called,  that 
is,  the  General  Assembly.  That  body  is  in  constant  direct  rela 
tions  with  the  people,  and  with  their  more  immediate  represent 
atives,  the  electors.  Its  voice  is  not  only  known  to  them,  but  it 
is  in  an  emphatic  sense  their  own  voice.  Moreover,  as  has  been 
already  shown,1  the  legislature  has  undoubted  authority,  under 
its  general  grant  of  legislative  power,  to  pass  the  Acts  necessary 
to  submit  a  Constitution  with  such  restrictions  as  shall  secure 
respecting  it  an  authentic  expression  of  the  public  will ;  to  which 
l  See  ante,  §§  482,  483. 


BY  WHOM  SUBMISSION  SHOULD  BE  MADE.        455 

end  it  may  provide  by  law  for  punishing  such  as  attempt  to  cast 
illegal  ballots,  or  to  disturb  the  quiet  of  the  election.  With  a 
Convention,  the  case  is  widely  different.  Conceding  to  it  equal 
wisdom  and  experience,  its  power  to  legislate  is  denied  by  most, 
and  doubted  by  all,  respectable  authorities  ;  certainly,  its  power, 
by  legislation,  both  to  provide  for  submission  with  the  necessary 
safeguards,  and  to  enforce  by  penalties  the  observance  of  its  re 
quirements.  If  a  Convention  has  any  power  at  all  in  the  prem 
ises,  it  is  confined  to  that  which  is  indispensable  to  the  complete 
execution  of  its  commission.  It  cannot  extend  to  such  special 
considerations  as  the  exigencies  of  time  and  place  may  require, 
and  to  meet  which,  a  wide  legislative  discretion  alone  is  ade 
quate.  For,  even  if  no  clause  of  the  Convention  Act  indicates 
the  disposition  to  be  made  by  the  Convention  of  its  work,  com 
mon  sense  would  seem  to  require  that  it  should  report  its  pro 
posed  Constitution  to  the  body  that  called  it,  to  deal  with  as  it 
might  deem  advisable. 

§  498.  It  is  not  to  be  denied,  however,  that  precedents  have 
established  a  contrary  rule.  In  a  very  large  proportion  of  the 
cases  in  which  submission  has  been  made,  it  has  been  provided 
for  by  the  Conventions  themselves.  Thus,  of  the  Constitutions 
heretofore  submitted,  seventy-eight  in  number,  this  has  been  the 
case  with  sixty-three.  In  nearly  one  half  of  these  cases,  the 
Conventions  acted  under  authority  of  the  Constitution  or  of 
the  Act  of  Assembly  calling  them,  requiring  them  to  submit 
their  propositions  to  a  vote  of  the  people.  In  the  remaining 
cases,  those  bodies  acted,  so  far  as  I  am  advised,  without  direct 
authority  of  law ;  in  obedience,  however,  doubtless,  to  the  tacit 
understanding,  that  submission  should  be  made,  which  has  gen 
erally  prevailed  in  the  country. 

§  499.  When  not  done  by  the  Conventions,  submission  has 
been  commonly  effected  through  the  medium  of  the  General 
Assemblies.  It  was  so  done  in  Virginia,  in  1830,  though  under 
the  direction,  or  at  the  request,  of  the  Convention ;  so,  also,  in 
Indiana,  in  1851,  and  in  some  other  cases.  The  Federal  Con 
stitution  was  submitted  by  the  Congress  of  the  Confederation, 
in  pursuance  of  the  request  of  the  Convention  of  1787.  In 
Virginia,  the  Act  under  which  the  Convention  of  1850  assem 
bled,  required  it  to  transmit  a  certified  copy  of  the  Constitution 
to  the  General  Assembly,  in  order  that  provision  might  be  made 


456  TO    WHOM   SUBMISSION   SHOULD   BE   MADE. 

bylaw  for  submitting  the  same  to  the  people,  and  for  organizing 
the  government  under  it.  This  provision  the  Convention  took 
the  liberty  of  disregarding;  transmitted  that  instrument  directly 
to  the  Governor,  who  was  required  to  publish  it,  and  then  made 
particular  provision  for  taking  a  vote  of  the  people  upon  it  on  a 
day  named.  This  is  one  of  the  few  instances  of  direct  disobe 
dience,  on  the  part  of  Conventions,  to  the  requirements  of  the 
Acts  under  which  they  were  assembled,  and  is,  in  my  judgment, 
totally  destitute  of  any  excuse  or  palliation. 

§  500.  II.  As  to  the  body  to  whom  submission  should  be 
made,  it  is  evident,  in  general,  that  no  one  can  be  entitled  to 
pass  upon  the  fundamental  law  but  the  sovereign  itself;  or,  in 
the  cases  of  the  States,  the  quasi  sovereign  bodies,  to  whom,  by 
the  nation  at  large,  has  been  committed  the  exercise  of  sovereign 
rights,  so  far  as  relates  to  local  affairs,  the  peoples  of  the  several 
States.  But,  because  it  is  impracticable  to  submit  it  to  such 
bodies,  a  choice  must  be  made  among  the  various  orders  of 
functionaries  who  represent  the  sovereign,  or  the  respective  quasi 
sovereigns ;  or  a  special  body  must  be  deputed  to  act  for  them 
in  the  matter ;  and,  as  the  submission  must  thus,  at  best,  be 
virtual,  it  is  the  duty  of  the  authorities  charged  with  the  busi 
ness  of  perfecting  a  fundamental  code,  to  see  to  it  that,  in  select 
ing  the  representative  to  whom  submission  is  to  be  made,  one 
be  chosen  who  will  act  therein  at  once  the  most  promptly,  the 
most  intelligently,  and  the  most  honestly.  Applying  this  test, 
it  is  evident,  that  neither  of  the  three  ordinary  departments  of 
the  government,  legislative,  executive,  and  judicial,  ought  to  be 
selected  for  that  office.  Not  to  repeat  arguments  already  suffi 
ciently  presented,  tending  to  show  the  impropriety  of  confiding 
fundamental  legislation  to  that  department  which  enacts  our 
municipal  laws,  to  that  which  interprets  and  applies  them,  or 
to  that  which  executes  them,  it  is  apparent  that  the  electors,  the 
most  numerous  order  of  functionaries  in  the  State,  withdrawn 
most  completely  from  the  passions  and  temptations  of  actual 
administration,  and  standing  nearer  to  the  people  than  any  other, 
are  the  best  fitted  for  that  delicate  duty.  Their  number  is  so 
great,  and  they  are,  withal,  so  evenly  diffused,  that  the  views 
they  may  at  any  time  hold  may  reasonably  be  presumed  to  be 
those  of  the  sovereign,  —  a  presumption,  indeed,  lying  at  the 
foundation  of  our  whole  suffrage  system,  —  yet  they  are  not  so 


TO    WHOM    SUBMISSION   SHOULD   BE   MADE.  457 

numerous  or  so  diffused  as  to  render  a  collective  ballot  by  them 
impracticable.  By  naming  the  electors  to  this  office,  another 
advantage  is  gained,  — -  one  of  the  utmost  importance  in  all 
governments  founded  upon  a  popular  basis,  —  and  that  is,  that 
substantive  powers  are  not  accumulated  in  a  few  hands,  or  in  a 
single  department,  but  are  distributed,  and  thus  made  to  coun 
terpoise  each  other.  The  legislature,  forbidden  itself  to  meddle 
with  it,  calls  a  Convention  to  revise  the  fundamental  law.  The 
Convention  matures  a  scheme  of  amendments  which  it  deems 
necessary,  and  recommends  them,  but  ventures  to  conclude 
nothing.  The  electors,  the  ultimate  body  of  functionaries,  take 
up  the  projet  which  the  Convention  has  forged  into  shape,  and 
temper  and  vitalize  it  by  a  power  derived  from  the  sovereign 
itself,  and  which  they  wield  as  its  immediate  representatives. 
Such  is  the  distribution  of  functions  exhibited  in  the  work  of 
fundamental  legislation. 

§  301.  It  is  to  the  people,  then,  that  is,  to  the  electors  —  for 
when  we  speak  of  the  actual  administration  of  government,  it 
is  they  whom  we  mean  by  the  term  people  —  that  Constitutions 
are  properly  to  be  submitted.  Accordingly,  of  the  Constitutions 
passed  upon  by  authority  other  than  that  of  the  Conventions  which 
framed  them,  the  largest  proportion  have  been  submitted  to  the 
people  in  that  sense.  Thus,  in  twenty-five  instances,  the  sub 
mission  was  in  general  terms  "  to  the  people."  l  In  twenty-three 
instances,  it  was  to  certain  designated  classes  of  the  citizens,  or 
of  the  inhabitants.  Thus,  fourteen  Constitutions  were  submitted 
either  to  the  "  legal  voters,"  "  to  the  qualified  voters  under  ex 
isting  laws,"  to  those  "  qualified  to  vote  for  the  most  numerous 
branch  of  the  legislature,"  or  to  those  "  qualified  to  vote  for  mem 
bers  of  the  Convention."  2  Four  were  submitted  to  the  voters 

1  This  was  the  case  with  the  Constitutions  framed  by  the  following  Conven 
tions:— Those  of  New  Jersey,  1844;  New  Hampshire,  1778,   1783,  1791,  and 
1850;  Georgia,  1838 ;  Massachusetts,  1778,  1779,  1820,  and  1853;  Kentucky, 
1849;   Tennessee,  1834;  Louisiana,  1844  and  1852;   Indiana,  1850;   Illinois, 
1847  and  1862;  Maine,  1819;  Michigan,  1835;  Iowa,  1846  and  1857;  Cali 
fornia,  1849  ;  Oregon,  1857  ;  and  Kansas,  1857  and  1859.     In  these  instances, 
the  Constitutions  were  uniformly  submitted  to  the  electors  qualified  to  vote  at 
general  elections,  under  existing  laws. 

2  They  are  the  following :— Those   of  Delaware,    1852;   Louisiana,    1864; 
Pennsylvania,  1838;  North  Carolina,  1835;  New  York,  1821  and  1846;  Ohio, 
1851;    Connecticut,  1818;   Michigan,  1850;    Texas,    1845;  Wisconsin,  1846; 
Maryland,  1851 ;  Kansas,  1855;  and  Nevada,  1864. 


458  TO   WHOM   SUBMISSION   SHOULD   BE   MADE. 

qualified  under  the  proposed  Constitution,  or  under  both  the  old 
and  new  Constitutions,1  and  two  to  the  white  male  inhabitants 
of  twenty-one  years  of  age,  &c.2  In  the  above  are  embraced 
many  first  Constitutions  of  States  formed  out  of  territory  of 
the  United  States,  and  the  phraseology  referred  to  indicates  the 
body  of  persons  to  whom,  not  the  regular  submission  required 
by  the  Federal  Constitution,  was  made,  —  for  that,  as  we  have 
seen,  is  always  to  the  Congress  of  the  United  States,  —  but  that 
supererogatory  submission,  authorized  by  Congress  of  late  years 
for  the  purpose  of  securing  the  settlers  in  our  Territories  against 
a  recurrence  of  the  outrages  which  so  foully  disgraced  the  Amer 
ican  name  in  Kansas.  In  all  cases  of  Territories  framing  their 
first  Constitutions,  as  we  have  seen,  submission  can  be  properly 
made  only  to  the  people  of  the  United  States,  represented  in 
Congress,  and  they  have  all  conformed,  of  necessity,  to  this  rule. 
§  502.  Among  the  instances  of  submission  given,  are  a  few 
which  deserve  special  attention  on  account  of  their  exceptional 
character.  Of  these,  the  first  that  I  shall  mention  are  the  two 
cases  of  Constitutions  framed  for  the  United  States.  The  Con 
stitution,  improperly  so-called,  of  the  Confederation,  comprised 
in  thirteen  articles,  was  the  Constitution  of  a  league  of  States, 
each  of  which  expressly  reserved  to  itself  "  its  sovereignty,  free 
dom,  and  independence."  It  was,  therefore,  a  mere  treaty,  and, 
of  course,  its  framers,  the  Continental  Congress,  were  bound  to 
submit  it  to  the  States,  of  which  they  were  the  representatives. 
This  course  was  followed,  and  that  instrument  was  ratified  by 
the  States  as  political  societies,  each  acting  by  its  legislative 
Assembly.3  The  Federal  Constitution,  on  the  other  hand,  was 
a  Constitution  based  not  only  on  States,  but  on  individuals,  and 
so  far  involved  the  substitution,  for  the  principle  of  a  league,  of 
that  of  a  national  government.  It  had  been  found  that  the 
system  of  the  Confederation  was  so  powerless  as  to  make  it 
nearly  useless  for  many  purposes  of  government.  Necessity 
required  the  enlargement  of  the  plan,  and  not  a  mere  revision 
or  amendment  of  the  government  framed  on  the  existing  plan. 
Accordingly,  although  nothing  was  swept  away  which  had 

1  These  are  those  of  Virginia,  1830,  1851  ;  Rhode  Island,  1842  ;  and  West 
Virginia,  1863. 

2  These  are  those  of  Wisconsin,  1848;  and  Minnesota,  1857. 

3  Federalist,  No.  XXII.,  adfinem,  per  Hamilton. 


TO    WHOM   SUBMISSION   SHOULD    BE   MADE.  459 

shown  itself  useful,  unless  clearly  incompatible  with  the  plan 
demanded  by  the  public  necessities,  the  system  proposed  was, 
in  its  most  characteristic  particulars,  a  radically  new  one.  It 
was  a  national  government  with  federal  features,  instead  of  a 
mere  league,  with  scarcely  any  features  at  all  of  an  effective 
government.  While  it  preserved  the  States,  as  political  com 
munities,  they  entered  into  the  new  system  shorn  of  many  of 
their  most  important  powers.  The  new  government  was,  in  its 
essence  and  organization,  a  popular  government,  and  not  a 
mere  sleazy  union  between  popular  governments  ;  and  in  it  first 
emerged  into  prominent  political  self-assertion  The  People  of 
the  United  States,  in  whose  name  it  purported  to  be  framed. 

§  503.  The  sources,  then,  from  which  the  Federal  Constitution 
must  seek  ratification,  were  three :  first,  the  existing  government 
of  the  Union,  embodied  in  the  Congress  of  the  Confederation ; 
secondly,  the  States,  as  political  organizations,  represented  by 
their  legislatures ;  and  thirdly,  the  people  of  the  United  States, 
by  that  Constitution  made  the  inheritors  of  many  of  the  pow 
ers  and  responsibilities  of  the  two  former.  The  necessity  of 
securing  a  ratification  of  the  new  system  by  the  Congress  of  the 
Confederation  and  by  the  States  is  apparent,  as  well  from  the 
fact  that  they  were  required  by  it  to  yield,  the  first  all,  and  the 
second  much,  of  its  power  to  that  system,  as  because  the  13th 
Article  of  the  existing  Constitution  expressly  forbade  the  mak 
ing  of  any  alteration  in  its  terms,  "  unless  such  alteration  should 
be  agreed  to  in  a  Congress  of  the  United  States,  and  be  after 
wards  confirmed  by  the  legislature  of  every  State."  Submis 
sion  to  the  people  of  the  United  States,  on  the  other  hand,  was 
demanded  by  the  consideration  that  they  were  really  the  princi 
pals,  in  whose  name  the  great  act  was  to  be  consummated, 
whilst  all  others,  the  Congress  and  the  States,  were  subordinates 
and  accessories. 

Accordingly,  the  Convention  of  1787  provided  for  a  submis 
sion  which  should  satisfy  all  these  conditions,  in  the  following 
resolution :  — 

"  Resolved,  That  the  preceding  Constitution  be  laid  before 
the  United  States  in  Congress  assembled,  and  that  it  is  the  opin 
ion  of  this  Convention  that  it  should  afterwards  be  submitted 
to  a  Convention  of  delegates,  chosen  in  each  State  by  the  people 
thereof,  under  the  recommendation  of  its  legislature,  for  their 
assent  and  ratification." 


460         TO  WHOM  SUBMISSION  SHOULD  BE  MADE. 

By  acting  according  to  this  resolution,  it  is  evident  that  both 
the  government  of  the  Confederation  and  those  of  the  States 
would  express  their  assent  to  the  new  Constitution.  The  pro 
vision  that  the  people  of  the  several  States  should  elect  delegate 
Conventions  to  pass  upon  it,  fulfilled  the  remaining  condition, 
since  thus,  and  thus  only,  could  the  people  of  the  United  States 
vote  upon  the  proposed  Constitution  as  a  whole,  that  is,  by 
voting  in  groups  by  States. 

§  504.  The  next  cases  of  submission  deemed  exceptional, 
which  I  shall  consider,  are  those  adopted  by  the  Virginia  Con 
ventions  of  1829  and  1850,  by  those  of  Rhode  Island  of  1842, 
and  West  Virginia  of  1863.  The  mode  adopted  in  those  cases, 
substantially  the  same  in  all,  was  to  submit  the  Constitution  to 
the  persons  thereby  qualified  to  vote  at  the  general  State  elec 
tions.1  It  is  evident  that,  in  these  cases,  a  new  principle  was 
invoked,  namely,  that  of  submitting  proposed  changes  in  the 
fundamental  law  to  persons  not  intrusted  with  public  functions 
in  the  State ;  in  other  words,  to  citizens  forming  no  part  of  the 
existing  governmental  system.  Such  a  submission  was,  in  my 
judgment,  not  only  a  novelty,  but  a  capital  innovation,  upon 
which  might  hang,  for  the  States  concerned,  the  most  weighty 
consequences  ;  and,  unless  the  principles  are  misconceived,  which 
ought  to  govern  the  subject,  it  was  unwarranted  and  in  the 
highest  degree  dangerous.  In  the  first  case  mentioned,  —  that 
of  the  Virginia  Convention  of  1829,  the  Convention  Act  had 
authorized  that  body  to  submit  the  Constitution  to  such  persons 
as  should  be  qualified  by  it  to  vote  for  members  of  the  House 
of  Burgesses,  —  an  authorization  which,  though  in  terms  ample, 
it  is  in  my  judgment  certain  the  General  Assembly  had  no 
power  to  give. 

§  505.  In  neither  of  the  four  cases,  so  far  as  I  am  advised, 

1  The  Virginia  Convention  of  1829  was  authorized  to  submit  its  work  "  to 
the  voters  thereby  qualified  to  vote  for  members  of  the  House  of  Burgesses ; " 
that  of  1850,  "  to  the  voters  qualified  under  the  existing  or  amended  Constitu 
tion  ; "  that  of  Rhode  Island,  "  to  all  persons  qualified  to  vote,  to  all  who  might 
be  qualified  to  vote  under  the  existing  laws  previous  to  the  time  of  such  their 
voting,  and  all  persons  who  should  be  qualified  to  vote  under  the  provisions  of 
such  "  (that  is,  the  proposed)  "  Constitution  ;  "  and  that  of  West  Virginia,  "  to 
all  persons  qualified  to  vote  under  the  amended  Constitution."  In  all  these 
cases  the  class  of  persons  entitled  to  vote  was  increased  above  that  under  the 
existing  Constitution. 


TO    WHOM   SUBMISSION   SHOULD    BE   MADE.  461 

was  the  propriety  of  that  mode  of  submission  discussed,  except 
in  the  first.  In  the  Virginia  Convention  of  1829,  a  powerful 
opposition  was  made  to  it  by  some  of  the  leading  men  in  the 
body.  But  a  measure  which  received  the  votes  of  Barbour, 
president  of  the  Convention,  of  Marshall,  Tyler,  and  Madison, 
though  opposed  by  Leigh,  Giles,  Nicholas,  Mason,  John  Ran 
dolph,  Tazewell,  and  Upshur,  cannot  be  lightly  condemned.  A 
brief  synopsis  of  the  arguments  advanced  by  both  sides  may  be 
useful,  —  premising  merely  that  there  had  been  passed  by  the 
General  Assembly  of  Virginia  two  Acts  relating  to  that  Con 
vention  :  first,  an  Act  submitting  to  the  people  the  question  of 
calling  a  Convention ;  and,  second,  after  the  people  had,  by  a 
large  majority,  sanctioned  such  a  call,  an  Act  to  call  and  organ 
ize  the  Convention,  in  which  was  inserted  the  provision  relating 
to  submission  before  referred  to. 

§  506.  By  the  friends  of  the  mode  of  submission  proposed  by 
the  committee  of  the  Convention  on  that  subject,  in  conformity 
with  the  authorization  of  the  General  Assembly,  it  was  argued, 
that  when  an  affirmative  answer  was  given  by  the  people  to  the 
simple  question  propounded  by  the  General  Assembly,  whether 
they  desired  a  Convention  or  not,  it  was  their  intention  that  the 
Assembly  should  give  expression  to  the  public  will,  as  well  with 
respect  to  the  manner  in  which  the  Convention  was  to  proceed 
as  to  the  purposes  for  which  it  was  to  be  holden ;  that  here, 
then,  was  the  authority  of  the  constituent  body  ;  here  was  the 
voice  of  the  principals,  to  whom  the  legislature  were  but  agents  ; 
that,  acting  under  that  authority,  they  declared  the  manner  and 
purpose  of  the  Convention  ;  that  that  declaration,  however,  was 
not  obligatory,  had  no  sanction,  did  not  bind  the  freeholders  to 
send  delegates ;  that,  if  it  contained  anything  which  the  free 
holders  did  not  approve,  they  might  have  arrested  the  pro 
ceeding  ;  that  they  had  the  same  authority  to  give  counter  in 
structions  as  they  had  to  give  original  instructions ;  that  they 
could  have  gone  to  the  polls  again,  and  commanded  the  leg 
islature  to  repeal  the  Act ;  but  that,  as  the  case  was,  if  the 
legislature  acted  at  all  in  the  matter,  it  had  plainly  to  pre 
scribe  the  objects  of  the  Convention,  and  how  they  were  to  be 
attained ;  that  the  whole  subject  had  been  referred  to  them  — 
there  being  no  other  way  to  do  it  —  and  that  the  only  remedy 
was  to  arrest  the  matter  in  pais ;  that  such  being  the  case, 


462  TO   WHOM    SUBMISSION   SHOULD   BE   MADE. 

what  had  been  done  ?  that  the  second  Act,  when  presented  to 
the  freeholders,  had  been  acquiesced  in  by  the  election  of  mem 
bers  everywhere,  without  complaint  or  remonstrance  ;  that,  if 
there  was  any  other  mode  in  which  the  people  could  express 
their  approbation,  it  might  be  said  the  Act  was  still  unratified  ; 
when,  therefore,  it  was  complained,  that  the  Convention  was 
proceeding  to  act  definitively  upon  the  right  of  suffrage,  by  ad 
mitting  persons  to  vote  on  the  new  Constitution,  without  con 
sulting  their  constituents,  the  answer  was,  that  it  was  true,  but 
that  their  constituents  had  authorized  them  so  to  do ;  that  it 
would  not  be  pretended  that  their  constituents  had  no  such 
power,  because  it  had  never  been  supposed  that  the  principal 
was  necessarily  bound  to  retain  the  right  of  ratifying  the  acts 
of  his  agent ;  that  it  might  have  been  unwise  in  the  people  to 
grant  such  a  power,  but  that  was  a  question  for  the  constituent 
body  alone ;  that,  finally,  it  was  too  late  to  assert  such  a  limit 
ation  of  the  power  of  that  body,  since  the  existing  Constitution 
of  the  State  had  never  been  submitted  to  the  constituent  body 
for  their  ratification  ;  that,  if  that  instrument  was  valid,  as  the 
supreme  law,  it  was  because  the  people  had  tacitly  expressed 
their  assent  to  it  by  electing  officers  under  it,  and  by  acquiescing 
in  its  provisions. 

§  507.  On  the  other  hand,  by  Mr.  John  Randolph,  Nicholas, 
and  others,  it  was  contended,  that,  conceding  the  right  of  the 
General  Assembly,  by  its  second  Act,  to  provide  for  the  call  and 
organization  of  the  Convention,  it  transcended  its  power  in 
authorizing  that  body  to  submit  the  result  of  its  labors  to  any 
body  but  to  the  freeholders  themselves.  Thus,  Mr.  Randolph 
said  :  — 

"  By  whose  authority  did  the  legislature  pass  the  ....  Act 
....  under  which  we  are  assembled  here  ?  By  the  authority 
of  their  constituents.  And  who  are  their  constituents?  The 
freeholders  of  the  Commonwealth.  By  whose  authority  do  we 
sit  here  ?  Whence  is  our  power  ?  From  our  constituents. 
And  who  are  our  constituents  ?  The  same  answer  must  be 
given,  —  the  freeholders  of  the  Commonwealth.  Now,  the  free 
holders  of  the  Commonwealth  having  given  their  sanction  to 
the  ....  Act  of  the  legislature  —  I  refer  to  the  first  as  well  as 
the  second  Act  on  the  subject  of  a  Convention  —  and  deputed 
us  here  to  propose  amendments  to  the  old  Constitution,  or  the 


TO   WHOM    SUBMISSION   SHOULD   BE   MADE.  4G3 

draft  of  a  new  one,  to  whom,  I  ask,  in  the  nature  of  things,  did 
the  freeholders  suppose  the  new  Constitution  was  to  be  sub 
mitted  for  adoption  or  rejection  ?  Must  it  not  have  been  to  that 
original  authority,  to  that  source  and  fountain,  from  whence  ia 
derived  all  our  authority  as  a  Convention  ?  —  I  mean  to  them 
selves  ?  Let  me  suppose  a  case.  A  majority  of  the  freeholders 
of  Virginia  ....  being  the  body  politic  of  Virginia,  have  con 
sented  that  a  Convention  shall  assemble  for  the  purpose  of 
devising  amendments  to  the  existing  Constitution  or  proposing 
a  new  Constitution  in  its  stead.  Now,  sir,  the  freeholders  of 
Virginia  have  not  yet  decided  —  though  they  have  decided  that 
amendments  shall  be  submitted  to  them  —  that,  with  worse  than 
the  stupidity  of  Esau,  they  shall  be  deprived  of  their  birthright. 
The  Convention  are  proposing  that  the  former  limits  of  the  right 
of  suffrage  shall  be  extended,  I  will  say,  ad  indefinitum.  Who  is 
to  decide  on  this  question  ?  Those  to  whom  we  propose  to  ex 
tend  that  right  ?  Unquestionably,  no ;  no  more  than  the  people 
of  Ohio  or  Pennsylvania  have  a  right  to  decide  it.  They  have 

no  right  whatever  ;  they  have  not  a  shadow  of  right Sir, 

it  is  as  plain  as  any  proposition  in  Euclid,  —  sir,  it  is  plainer  — 
it  is  self-evident  —  that  no  other  power  on  earth,  save  that  power 
from  which  this  Convention  derives  all  its  authority  to  propose 
any  Constitution  at  all,  can  rightfully  pronounce  on  the  validity 
of  our  acts,  or  decide  upon  the  acceptance  or  rejection  of  such 
Constitution  as  we  shall  make."  l 

§  508.  The  same  principles  that  govern  the  foregoing  cases, 
in  which  submission  was  made  to  the  electors  plus  citizens  not 
within  the  electoral  circle,  will  settle  that  of  submission  to  a 
part  only  of  the  electors,  not  representing  the  whole  body. 

This  latter  mode  was  attempted,  in  a  case  already  referred  to, 
by  the  Illinois  Convention  of  1862.2  In  that  case,  an  Ordinance 
was  passed,  entitled  "  An  Ordinance  to  secure  to  the  citizens  of 
Chicago  and  the  corporate  authorities  thereof  the  right  to  elect 
and  appoint  their  own  officers/'  By  its  terms  this  Ordinance 
was  to  be  submitted,  on  the  third  day  of  the  ensuing  April,  to 
the  legal  voters  of  the  city  of  Chicago,  and,  if  adopted,  was 
to  have  the  effect  of  repealing  certain  statutes  obnoxious  to  a 

1  Deb.  Fa.  Cony.,  1829,  pp.  866,  884,  885.     See  also  Speech  of  Mr.  Nicholas, 
id.  p.  891. 

2  See  ante,  §§  430-434. 


464  TO    WHOM    SUBMISSION   SHOULD   BE   MADE. 

portion  of  the  inhabitants  of  said  city  and  vicinity.  The  Ordi 
nance  was,  moreover,  incorporated  into  the  Schedule  appended 
to  the  Constitution,  and  with  it  was  directed  to  be  submitted  to 
a  vote  of  the  people  of  the  State  at  an  election  to  be  held  on 
the  3d  Monday  of  June,  about  two  months  after  the  separate 
vote  on  the  Ordinance  alone.  The  object  designed  to  be  effected 
by  the  foregoing  provisions,  is  apparent  at  a  glance.  It  was 
intended  to  parcel  out  the  Constitution,  submitting  one  part  of 
it  to  the  citizens  of  Chicago,  and  the  residue  to  the  people  of 
the  State  at  large,  and  to  cause  the  former,  temporarily  at  least, 
to  take  effect  independently  of  the  latter.  The  question  is,  was 
it  within  the  competence  of  that  body  to  submit  its  work,  or 
any  portion  of  it,  to  the  citizens  of  Chicago,  or  to  any  number 
of  the  electors  less  than  the  whole  ? 

§  509.  The  impropriety  of  such  a  submission  becomes  evi 
dent  when  it  is  considered  that  it  is  the  sovereign,  the  political 
society  or  people,  as  a  unit,  whose  function  it  is  to  pass  upon 
the  fundamental  law.  The  electors  of  a  single  district  have  no 
power  to  speak  for  that  great  constituency,  for  they  neither 
constitute  nor  represent  it.  The  voice  uttered  by  them,  when 
they  speak  by  their  ballots,  is  but  an  element  in  the  voice 
of  the  people,  having  no  force  of  itself  whatever,  but  only  as  it 
contributes  to  swell  the  chorus  which  alone  is  the  people's  voice. 
The  voice  of  the  people  is  one  freighted  with  a  single  sentiment 
or  command,  not  a  multitude  of  voices,  each  uttering  a  senti 
ment  or  command  of  its  own.  It  is  the  resultant  of  all  the 
separate  voices  of  the  individuals  constituting  the  people. 
When,  therefore,  the  electors  of  Chicago  voted  upon  the  Ordi 
nance  in  question,  they  did  not  utter  the  voice  of  the  people  of 
the  State,  in  whom  alone  rests  the  power  of  making  and  un 
making  Constitutions,  but  of  a  minute  fraction  of  it,  having  no 
authority  to  represent  the  whole.  However  respectable  they 
were  in  point  of  numbers  and  intelligence,  they  were  as  desti 
tute  of  power  to  speak  officially  for  the  people  of  Illinois  as  the 
two  London  tailors,  whose  petition  to  Parliament  commenced 
in  these  words,  "  We,  the  people  of  England,"  were  to  speak  for 
the  latter.1 

1  To  this  case  in  Illinois  it  may  be  proper  to  add  one  or  two  others  in  prin 
ciple  not  entirely  dissimilar.  The  Tennessee  Convention  of  1834  submitted  the 
Constitution  it  framed  to  that  part  of  the  electoral  body  which  was  white,  thus 


NATURE  OP  THE  ACT  OF  THE  PEOPLE,  ETC.       465 

§  510.  III.  We  are  now  to  determine  the  nature  of  the  act 
performed  by  the  persons  or  body  to  whom  submission  is  made. 

A  convenient  mode  of  conducting  this  inquiry  will  be  to  pass 
in  review  the  various  departments  of  a  government,  and  to 
select  from  amongst  them  that  one  whose  acts  and  functions 
correspond  with  those  of  the  people  in  the  act  of  passing  upon 
a  fundamental  law. 

The  act  in  question  must,  I  think,  be  comprised  within  one 
of  the  three  classes  of  acts  known  as  legislative,  executive,  and 
judicial.  Let  us  see  to  which  it  belongs,  commencing  with  the 
last. 

(a).  When  the  people  pass  upon  a  Constitution,  the  act  done 
by  them  is  so  palpably  not  of  a  judicial  character,  that  I  spend 
no  time  in  comparing  or  contrasting  it  with  the  exercise  of 
judicial  power. 

(b).  Understanding  by  the  term  executive  acts,  such  as  are 
usually  performed  by  our  executive  magistrates,  there  are  of 
such  acts  three  separate  classes  :  1,  administrative  acts,  relating 
to  the  carrying  of  laws  into  practical  effect;  2,  acts  involving 
the  exercise  of  the  official  negative,  or  veto;  and,  3,  acts  of 

excluding  from  a  voice  in  forming  the  fundamental  law,  the  free  blacks  author 
ized  to  vote  by  the  Constitution  then  in  force,  — that  of  1796. 

So  also  the  Maryland  Convention  of  1864  submitted  its  Constitution  to  "  such 
electors  as  are  qualified  according  to  the  provisions  of  this  Constitution."  The 
qualifications  were  the  same  under  this  and  the  former  Constitution,  except  that, 
by  the  Constitution  of  1864,  no  person  was  qualified  to  vote  but  upon  taking  a 
stringent  oath,  intended  to  exclude  rebels  and  rebel  sympathizers.  Whether  or 
not  this  exclusion  was  absolutely  necessary  for  the  safety  of  the  State,  at  the 
time,  is  a  political  question  which  does  not  concern  us  here.  Upon  strict  prin 
ciple,  however,  I  have  no  doubt  the  course  taken  by  the  Convention  was  irregu 
lar,  though  it  has  been  contended  that  it  was  authorized  by  the  terms  of  Section 
VI.  of  the  Convention  Act,  which  required  the  Constitution  to  be  submitted  to 
"  the  legal  and  qualified  voters  of  the  State  for  their  adoption  or  rejection,  at 
such  time,  in  such  manner,  and  subject  to  such  rules  and  regulations  as  said 
Convention  may  prescribe."  Admitting  that  the  General  Assembly  intended  by 
this  Act  to  authorize  a  submission  to  the  electors,  minus  a  certain  class  of  per 
sons  designated,  it  is  doubtful  whether  it  had  the  power  thus  to  discriminate.  If 
it  had,  it  must  be  on  the  ground  that  it  could  override  even  the  Constitution 
itself,  when,  in  its  judgment,  the  safety  of  the  State  required  it  —  a  ground,  I 
need  not  say,  extremely  menacing  to  the  public  liberties.  The  Tennessee  and 
Maryland  cases,  then,  must  both,  in  my  judgment,  be  placed  alongside  of  that 
of  Illinois,  described  in  the  text,  though,  perhaps,  the  aberration  from  principle 
was  in  each  of  the  former  less  glaring  than  in  the  latter. 


466  NATURE   OF  THE   ACT   OF  THE   PEOPLE 

authentication,  such  as  the  signing  of  bills,  &c.     Does  the  act 
in  question  belong  to  either  of  these  classes  ? 

1.  It  cannot  be  pretended  that  the  act  of  the  people,  in  the 
case  supposed,  is  an  act  of  administration,  which  is  possible 
only  when  the  law  to  which  it  relates  has  been  passed  and  ap 
proved.  The  purpose  of  an  administrative  act  is  to  give  to  a 
law,  already  complete  as  such,  the  practical  operation,  without 
which  it  would  remain  a  dead  letter  in  the  statute  book.  This 
is  equally  true  of  municipal  laws,  strictly  so  called,  and  of  or 
ganic  or  fundamental  laws. 

§  511.  2.  Though  the  act  of  the  people  we  are  considering  bears 
some  resemblance  to  the  exercise  of  the  negative  or  veto  power, 
still  I  am  satisfied  it  is  radically  different  from  it ;  and  the  result 
is  the  same,  whether  it  be  compared  with  the  true  veto,  as  exer 
cised  by  the  Roman  Tribunes,  by  the  individual  members  of  the 
Polish  Diets,  or  by  the  English  monarchs,  or  with  the  qualified 
veto,  more  properly  called  the  negative,  familiar  to  us  in  Amer 
ica.  The  veto  proper  was  an  absolute  interdict  upon  the 
measure  proposed,  and  it  was  nothing  more.  It  never  ratified 
or  sanctioned,  but  always  forbade.  It  consequently  made  of 
every  functionary  intrusted  with  the  power  a  coordinate  depart 
ment  with  the  legislature  in  the  matter  of  rejecting,  though  not 
in  that  of  confirming,  laws.  The  negative  of  an  American 
President  or  Governor  is  somewhat  similar  in  its  nature,  but  is 
much  less  extensive  in  its  effects.  It  is,  like  that,  a  mere  inter 
dict  ;  but  it  is  an  interdict  that  is  only  provisional,  having  the 
effect  simply  of  compelling  a  reconsideration  of  the  measure  to 
which  it  has  been  applied,  and,  in  the  vote  to  be  taken  upon  it, 
of  enhancing,  as  if  by  a  temporary  amendment  to  the  Constitu 
tion,  the  majority  necessary  to  carry  it.  In  most  of  the  State 
Constitutions,  as  in  that  of  the  United  States,  it  is  provided,  that 
a  bill  "returned  with  the  objections"  of  the  Executive  may, 
notwithstanding,  become  a  law,  if,  on  a  reconsideration,  it  be 
passed  by  a  two-thirds  vote  in  both  houses. 

That  a  vote  of  the  people  upon  a  Constitution  is  not  in  char 
acter  like  either  of  these  executive  acts,  is  perceivable  at  a 
glance.  The  vote  of  the  people  may  be  in  the  negative,  or  it 
may  be  in  the  affirmative  ;  and  in  either  event  it  is  absolute. 

Again :  both  the  veto  proper  and  the  negative  of  an  Amer 
ican  executive  officer,  operate  only  upon  a  bill  passed  through 


IN   PASSING   UPON    A   CONSTITUTION.  467 

all  the  forms  of  a  law,  by  the  two  houses  of  the  legislature, 
and  submitted  to  him  for  his  official  sanction.  It  is  impossible 
that  a  measure  not  thus  originating  should  be  the  subject  of 
the  veto  or  of  the  negative.  With  a  Constitution  submitted  to 
a  vote  of  the  people,  it  is  different.  A  Convention  might  reject 
a  particular  form  of  a  Constitution,  and  adopt  and  submit  to 
the  people  another ;  but  if  the  legislature  were,  in  the  mean 
time,  before  the  vote  upon  it,  to  submit  for  the  consideration  of 
the  people  the  rejected  Constitution,  it  might  be  competent  for 
them,  at  the  same  election,  to  adopt  the  latter  and  reject  the 
former. 

§  512.  3.  For  similar  reasons,  the  act  of  the  people  is  not  to 
be  compared  with  the  executive  act  of  giving  assent  to  bills  by 
the  formality  of  signing  them.  The  latter  is  an  act  applicable 
only  to  bills  passed  by  the  legislative  branch,  and  is  only  used 
to  affirm,  arid  not  to  negative,  such  bills. 

§  513.  (c).  The  act  of  the  people  in  adopting  or  rejecting  a 
Constitution,  on  the  other  hand,  is  clearly  legislative  in  its  char 
acter.  It  either  gives  force  to  what  comes  to  them  as  a  mere 
proposition,  or  it  rejects  that  proposition  absolutely  and  defini 
tively.  A  power  thus  to  impart  vitality  to  law,  where  before 
there  was  none,  is  a  power  of  legislation.  Conceding  that  the 
people  have  power  to  enact  fundamental  laws,  all  becomes  sim 
ple  and  intelligible.  Under  its  general  power  to  enact  a  Consti 
tution,  the  people  may  perhaps  authorize  a  Convention  to  exer 
cise  the  same  power,  without  submitting  it  for  ratification  —  that 
is,  for  what  it  may  deem  sufficient  reasons,  it  may  delegate  that 
power  to  a  Convention  ; 1  or,  grasping  more  firmly  the  reins  of 
power,  and  consulting  more  the  safety  of  the  Commonwealth,  it 
may  itself  exercise  its  legislative  function,  rejecting  or  adopting 
a  part  or  all  of  what  is  submitted,  as  it  may  think  advisable. 

Nor  is  the  character,  thus  attributed  to  the  people,  of  an  ex- 

1  This,  perhaps,  needs  explanation.  As  was  observed  a  few  pages  back,  it  is 
perhaps  too  late  to  deny  to  the  people  this  power  of  delegation.  It  has  been 
too  often  exercised.  But  the  right  of  a  legislature  to  authorize  a  Convention  to 
exercise  the  power  in  question  is,  on  principle,  more  than  doubtful.  It  cer 
tainly,  in  my  judgment,  does  not  exist.  The  most  that  can  be  conceded  —  and 
that  rather  on  the  authority  of  precedents  than  otherwise  — is,  that  a  legislature 
might  pass  a  law  providing  for  definitive  action  by  a  Convention,  and  if  that 
law  were  submitted  to  the  people  so  as  fairly  to  draw  out  an  expression  of  the 
public  will  on  the  point,  it  would  be  liable  to  no  serious  objection. 


468        NATURE  OF  THE  ACT  OF  THE  PEOPLE,  ETC. 

traordinary  legislature,  so  far  as  concerns  the  fundamental  law, 
inconsistent  with  their  evident  inability  to  mature  laws  by  dis 
cussion,  as  in  legislative  assemblies.  The  same  inability  in 
heres  to  some  extent  in  our  legislatures.  Without  committees 
to  inquire  and  report,  to  draft  and  mould  into  form  fit  for  public 
action,  bills  for  Acts,  legislation  as  known  amongst  us  would  be 
well-nigh  impracticable.  As  a  body,  a  legislature  is  too  numer 
ous  and  unwieldy  for  the  function  of  digesting  such  bills.  The 
difficulty  inherent  in  legislation  by  the  people,  though  somewhat 
greater  by  reason  of  their  greater  number  and  dispersion,  is  of 
precisely  the  same  character.  The  people,  acting  as  legislators, 
need  the  antecedent  ministry  of  intelligent  and  skilful  commit 
tees  to  gather  and  to  embody  in  fitting  forms  their  collective 
sense.  Our  Conventions  are  simply  committees  of  such  a  kind. 
And  if  we  look  closely  into  the  principles  of  legislation,  the  fact 
that  the  people  never  legislate  in  a  single  body,  but  in  groups, 
assembled  in  separate  districts,  not  to  debate,  but  to  vote  upon, 
the  measures  proposed  to  them,  does  not  constitute  a  radical 
difference  between  them  and  a  legislature.  The  latter  might 
enact  the  statute  law  in  the  same  way ;  and  to  those  familiar 
with  the  practices  of  such  bodies,  it  may  be  doubtful  whether 
legislation  so  conducted  would  not  be  more  honest,  if  not  more 
intelligent,  than  it  is  now. 

It  seems  clear,  then,  that  the  act  of  the  people  in  passing 
upon  a  Constitution  is  a  legislative  one,  though,  on  account  of 
the  exceptional  circumstances  under  which  it  is  performed,  an 
act  unique  in  character.1 

1  That  the  people  act,  in  the  case  supposed,  in  a  legislative  capacity,  has 
been  repeatedly  intimated  by  high  authority.  See  the  case  of  The  People  v. 
Collins,  3  Mich.  R.  343,  per  Douglass,  ,T. ;  2  Am.  Law  Reg.  p.  591,  same  case. 

Mr.  John  Austin,  in  his  profound  work,  The  Province  of  Jurisprudence  De 
termined,  says,  respecting  a  single  State,  what  is  true  of  all  the  States  in  the 
Union :  —  "In  the  State  of  New  York,  the  ordinary  legislature  of  the  State  is 
controlled  by  an  extraordinary  legislature The  body  of  citizens  appoint 
ing  the  ordinary  legislature  forms  an  extraordinary  and  ulterior  legislature,  by 

which  the  Constitution  of  the  State  was  directly  established That  such 

an  extraordinary  and  ulterior  legislature  is  a  good  or  useful  institution,  I  pre 
tend  not  to  affirm.  I  merely  affirm  that  the  institution  is  possible,  and  that,  in 
one  political  society,  the  institution  actually  obtains."  —  The  Prov.  of  Jurisp. 
Determined,  Vol.  I.  pp.  205,  206. 

An  anonymous  writer  in  the  American  Law  Register,  published  at  Philadel 
phia,  has  attempted  to  cast  ridicule  upon  this  observation  of  Mr.  Austin,  as  an 


HOW   CONSTITUTIONS   SHOULD    BE   SUBMITTED.  469 

§  514.  IV.  I  pass  now  to  consider  briefly  the  manner  in 
which  Constitutions  should  be  submitted. 

In  determining  the  manner  of  submitting  Constitutions  to 
the  people,  two  things  should  be  kept  prominently  and  con 
stantly  in  view :  first,  the  obtaining,  completely  and  as  far  as 
possible  in  detail,  of  the  public  will ;  and,  secondly,  convenience, 
—  the  latter,  however,  being  a  consideration  of  inferior  impor 
tance,  when  compared  with  the  former.  The  general  rule,  un 
doubtedly  should  be,  that  every  clause  of  both  Constitution  and 
Bill  of  Rights  must  be  submitted  to  the  people,  those  only  ex- 
cepted  which  are  to  take  effect  in  the  act  of  making  the  sub 
mission  itself.  No  other  rule  can  be  adopted  with  safety  ;  for  if 
it  were  admitted  that  any  other  exceptions  whatever  could  be 
made,  and  that  provisions  of  minor  importance  might  be  re 
served  from  the  people,  to  be  put  in  force  by  the  Convention 
directly,  the  door  would  be  thrown  open  to  all  manner  of 
abuses.  When  is  a  constitutional  provision  of  minor  impor 
tance  ?  The  same  provision,  from  a  difference  of  circumstances, 
may  be  of  vast  moment  in  one,  and  of  no  moment  at  all  in 
another,  Constitution.  Obsta  principiis  is,  in  such  cases,  the 
only  safe  maxim.  If  it  be  recognized  as  the  duty  of  a  Conven 
tion  to  submit  its  work  to  the  people,  either  on  the  ground  that 
the  legislature  has  so  directed,  or  that  such  a  course  is  intrinsi 
cally  proper,  because  its  resolutions  are  recommendatory  only, 
where  can  it  find  the  right  to  discriminate  between  what  should 
and  what  need  not  be  submitted  ?  —  to  draw  the  line  beyond 
which  it  is  within  its  own  discretion  to  obey  or  to  disobey  the 
imperative  provisions  of  law  ? 

§  515.  A  Constitution  may  be  wholly  new,  or  it  may  be  an 
old  one  revised  by  altering  or  adding  to  its  material  provisions. 
It  may,  also,  in  a  hundred  separate  subdivisions,  contain  but  a 
fourth  of  that  number  of  distinct  topics,  or  each  subdivision 
may  be  substantive  and  independent.  It  is  obvious  that  the 
submitting  body,  weighing  accurately  the  public  sense,  may 

instance  of  the  ignorance  prevailing  among  public  men  and  writers  abroad  in 
regard  to  our  institutions.  But  I  am  satisfied  the  writer  referred  to  had  not  the 
slightest  conception  of  Mr.  Austin's  meaning.  We  must  not  be  the  slaves  of 
words.  In  substance,  the  electors,  in  the  act  of  ratifying  or  rejecting  a  Consti 
tution,  are  a  legislature,  —  "  an  ulterior  legislature,"  —  as  compared  with  the 
General  Assembly.  See  Am.  Law  Reg.,  Vol.  IV.,  New  Series,  p.  12. 


470       HOW  CONSTITUTIONS  SHOULD  BE  SUBMITTED. 

determine  whether  the  whole  Constitution  must  stand  or  fall  as 
a  unit,  or  whether  some  parts,  being  adopted  and  going  into 
effect  without  the  rest,  the  new  system  would  be  adequate  to 
the  exigencies  of  the  state,  and  may  submit  it  as  a  whole  or  in 
parts  accordingly.  But  it  is  perfectly  clear  that  every  distinct 
proposition,  not  vital  to  the  scheme  as  a  whole,  or  to  some  other 
material  part,  ought  to  be  separately  submitted.1  If  it  were  not 
nearly  impracticable,  the  best  mode  would  be  to  submit  every 
distinct  proposition  separately,  so  that  each  voter  could  vote  yea 
or  nay  upon  it,  regardless  of  anything  but  its  absolute  propri 
ety.  In  many  cases,  however,  such  a  mode  could  not  be  safely 
adopted,  since  different  measures  might  have  been  so  adjusted 
to  each  other,  that  by  the  absence  of  either  the  balance  of  the 
system  would  be  disturbed.2  Such  associated  provisions  ought, 
therefore,  to  be  submitted  in  conjunction.  On  the  other  hand, 
where  no  material  changes  have  been  made  in  the  existing  Con 
stitution,  or  such  only  as  had  been  unequivocally  demanded  by 
the  public  voice,  the  more  convenient  and  compendious  mode 
of  a  submission  in  mass  may,  without  material  objection,  be 
adopted.  Every  case,  then,  must,  to  a  considerable  extent, 

1  In  November,  1820,  a  bill  for  an  Act  calling  a  Convention  was  passed  by 
both  houses  of  the  New  York  Legislature,  but  was  returned  by  the  Council  of 
Revision  with  objections,  one  of  which  was,  that  the  bill  provided  for  submitting 
the  Constitution  to  the  people  in  mass,  and  not  in  separate  sections  according  to 
the  various  subjects  embraced.     The  Council,  stating  this  ground  of  objection, 
say :  it  is  objected  to,  "  Because  the  bill  contemplates  an  amended  Constitution 
to  be  submitted  to  the  people,  to  be  adopted  or  rejected  in  toto,  without  prescrib 
ing  any  mode  by  which  a  discrimination  may  be  made  between  such  provisions 
as  shall  be  deemed  salutary,  and  such  as  shall  be  disapproved  by  the  judg 
ment  of  the  people.     If  the  people  are  competent  to  pass   upon  the  entire 
amendments,  of  which  there  can  be   no  doubt,  they  are  equally  competent  to 
adopt  such  of  them  as  they  approve,  and  to  reject  such  as  they  disapprove  ;  and 
this  undoubted  right  of  the  people  is  the  more  important,  if  the  Convention  is 
to  be  called  in  the  first  instance  without  a  previous  consultation  of  the  pure  and 
original  source  of  all  legitimate  authority."     See  post,  Appendix  B. 

2  On  this  subject,  Daniel  Webster,  in  the  Massachusetts  Convention  of  1820, 
said :  "  When  the  Constitution  of  New   Hampshire  "  (meaning  that  of  1 783) 
"was  revised,"  (in  1792,)  "the  Convention  submitted  the  amendments  to  the 
people  for  their  adoption  separately,  and  it  was  found  at  the  adjourned  session 
of  the  Convention  that  some  were  adopted  and  some  rejected,  so  as  to  make 
incongruous  those  which  were  adopted.     The    Convention   then   pursued  the 
course  ....  of  uniting  in  one  article  all  that  were  necessarily  connected,  and 
no  further  difficulties  occurred."  —  Deb.  Mass.  Conv.  of  1820,  p.  224. 


HOW   CONSTITUTIONS   SHOULD  BE  SUBMITTED.  471 

stand  upon  its  own  foundation.  The  problem  is  —  Given  one 
or  more  proposed  changes  of  the  fundamental  law  —  to  reconcile 
the  indispensable  requisite  —  a  bond  fide  submission  of  them  to 
the  people,  so  as  to  ascertain  their  will  in  respect  to  each  of 
them  —  with  a  reasonable  degree  of  convenience.  Submission 
must  be  so  made,  moreover,  that  the  general  scheme,  if  adopted, 
shall  not  limp  from  lack  of  a  necessary  member,  —  it  being  ob 
viously  better  to  be  relegated  to  an  old  Constitution,  which, 
though  inadequate  and  partly  obsolete,  perhaps,  is  yet  fully  and 
consistently  developed,  than  to  be  governed  by  a  new  one  so 
mutilated,  in  the  act  of  birth,  as  to  lack  necessary  powers. 

§  516.  It  must  be  admitted,  that  but  little  attention  has  been 
paid  to  the  distinctions  here  indicated.  In  far  the  larger  propor 
tion  of  the  cases  in  which  submission  has  been  made,  it  has 
been  of  the  instruments  entire.  This  was  naturally  true,  in 
general,  of  all  such  as  were  first  Constitutions  of  their  respective 
States. 

The  earliest  departure  from  this  mode  was  in  Massachusetts, 
in  1780,  in  which  the  Frame  of  Government  and  Bill  of  Rights 
were  both  submitted  in  such  a  way  as  to  enable  the  people  to 
reject  the  whole  or  any  part  of  either,  —  a  course  followed  by 
all  the  subsequent  Conventions  in  that  State,  though  the  Act 
calling  the  Convention  of  1820  left  it  to  the  discretion  of  that 
body  to  determine  the  mode  in  which  the  submission  should  be 
made.  The  example  set  by  Massachusetts  in  1780  was  fol 
lowed  by  New  Hampshire  in  1791,  and  in  the  subsequent  revis 
ion  in  1850.  The  Acts  calling  the  New  York  Conventions  of 
1821  and  1846  required  those  bodies  to  submit  their  proposed 
amendments  to  the  people,  together  or  in  distinct  propositions, 
as  to  them  should  seem  expedient.  Accordingly,  the  Conven 
tion  of  1821  provided  that  they  should  be  submitted  "  together, 
and  not  in  distinct  parts ; "  and  that  of  1846,  expressing  the 
opinion  that  the  amendments  it  proposed  could  not  be  prepared 
so  as  to  be  voted  on  separately,  submitted  them  en  masse  ex 
cepting  one,  that  relating  to  "  equal  suffrage  to  colored  persons," 
which  was  submitted  as  a  separate  article.  Under  a  similar 
discretion,  the  Pennsylvania  Convention  of  1837  submitted  its 
amendments  en  masse.  The  Illinois  Conventions  of  1847  and 
1862,  and  the  Oregon  Convention  of  1857,  pursued  a  course 
similar  to  that  of  the  New  York  Convention  of  1846,  submit- 


472  HOW   CONSTITUTIONS   SHOULD   BE   SUBMITTED. 

ting  the  great  body  of  their  respective  Constitutions  entire,  but 
a  few  articles  relating  to  slavery,  to  the  immigration  of  colored 
persons,  the  public  debt,  and  other  subjects  considered  of  doubt 
ful  policy,  separately.  The  Illinois  Convention  of  1847,  though 
it  submitted  the  bulk  of  its  articles  in  the  manner  stated  above, 
withheld  one,  relating  to  "  commons,"  altogether  from  the  con 
sideration  of  the  people,  therein  proceeding  in  direct  violation 
of  the  Act  under  which  it  assembled,  which  expressly  required 
it  to  submit  its  amendments  to  the  people.1 

§  517.  The  subject  of  the  proper  mode  of  submitting  Consti 
tutions  to  the  people,  received  an  elaborate  discussion  in  the 
case,  now  celebrated  in  our  political  annals,  of  the  so-called 
Lecompton  Constitution,  framed  for  the  State  of  Kansas.  Con 
cocted  in  a  time  of  crisis  by  the  partisans  of  slavery,  by  whom 
an  attempt  was  made  to  force  it  upon  that  State  against  the 
wishes  of  the  majority  of  its  inhabitants,  mainly  emigrants  from 
the  free  States,  and  desirous  of  establishing  free- state  insti 
tutions  therein,  that  instrument  had  the  singular  fate  to  be 
twice,  and  a  part  of  it  three  times,  submitted  to  the  people,  by 
different  bodies,  and  though  once  declared  adopted,  to  have 
never  in  fact  been  established  as  the  Constitution  of  that  State. 
A  brief  sketch  of  the  history  of  this  case  will  not  be  without 
interest,  and  it  will,  it  is  believed,  throw  light  upon  the  general 
doctrine  of  submission  of  Constitutions -we  are  considering.2 

On  the  5th  of  September,  1857,  there  assembled  at  Lecomp 
ton,  Kansas,  at  the  call  of  the  Territorial  Legislature,  but  with 
out  an  enabling  Act  of  Congress,  a  Convention,  by  which  the 
Constitution  referred  to  was  framed.  The  body  was  composed 
in  the  main  of  delegates  elected  in  the  interest  of,  if  not  by,  the 
pro-slavery  party  in  that  and  the  neighboring  State  of  Missouri, 
the  free-state  men  of  Kansas  abstaining  from  the  elections,  in 
the  expectation  that  whatever  Constitution  the  Convention 
should  agree  upon  would  be  submitted  to  the  electors  of  the 
Territory.  The  Territorial  Governor  had,  in  fact,  promised  sol 
emnly,  in  the  name  of  the  government  which  he  represented, 

1  Some  Constitutions  contain  an  excellent  provision,  requiring  submission  to 
be  made  in  such  a  manner,  that  each  clause  can  be  voted  on  separately.     See 
Ohio  Const.  1851,  Art.  16,  Sec.  3.     It  provides  that  "when  more  than  one 
amendment  shall  be  submitted  at  the  same  time,  they  shall  be  so  submitted  as 
to  enable  the  electors  to  vote  on  each  amendment  separately." 

2  See  also  ante,  §§  415-418. 


HOW   CONSTITUTIONS   SHOULD   BE   SUBMITTED.  473 

that  the  Constitution  it  should  frame  should  be  submitted  to  a 
fair  vote  of  the  people.  This  promise,  however,  was  not  re 
deemed;  so  far  from  it,  the  Convention  enacted  the  farce  of 
submitting  it  to  the  people,  but  did  it  in  such  a  way  as  to  com 
pel  them  to  vote  for  the  Constitution  or  abstain  from  voting 
altogether  —  the  vote,  to  be  taken  on  the  21st  of  the  ensuing 
December,  being  required  to  be,  "  For  the  Constitution  with 
slavery,"  or  "  For  the  Constitution  without  slavery." 

In  the  mean  time,  a  new  Territorial  election  being  held,  and 
resulting  in  giving  to  the  Free-State  party  a  majority  in  the  Ter 
ritorial  legislature,  that  body,  on  the  17th  of  December  —  about 
a  week  before  the  vote  ordered  by  the  Convention  —  passed 
an  Act  fairly  submitting  the  Constitution  as  a  whole,  except  the 
slavery  clause,  which  was  submitted  as  a  separate  article,  to  the 
qualified  electors,  at  an  election  to  be  held  on  the  4th  of  Janu 
ary,  1858.  Both  these  elections  were  held  at  the  times  fixed ; 
that  ordered  by  the  Convention  resulting  in  the  adoption  of  the 
Constitution  with  slavery  by  a  vote  of  6266  to  567 ;  and  that 
held  under  the  Territorial  Act,  in  the  rejection  of  the  entire 
Constitution  by  a  vote  of  138  "for  the  Constitution  with  sla 
very,"  24  "  for  the  Constitution  without  slavery,"  and  10,226 
"  against  the  Constitution."  Here,  then,  was  a  Constitution, 
adopted  in  the  main  by  six  thousand  majority  at  one  election, 
and  at  another,  held  two  weeks  later,  rejected  in  toto  by  over 
ten  thousand  majority.  Evidently,  such  results  could  only  have 
been  produced  by  fraud  and  management  upon  one  side  or  the 
other.  Each  party  claimed  that  the  election,  whose  result  was 
favorable  to  its  own  views,  was  the  only  valid  one,  but,  inas 
much  as  the  pro  slavery  party  constituted  the  majority  of  the 
Convention,  the  Constitution  was,  under  its  direction  and  by  its 
officers,  forwarded  to  Congress  as  the  expression  of  the  will  of 
the  inhabitants  of  the  Territory,  with  a  petition  for  admission 
into  the  Union  as  a  State  under  it. 

§  518.  Accordingly,  the  Senate  Committee  on  Territories 
reported  a  bill  for  that  purpose,  upon  which  arose  a  very  excited 
and  protracted  debate.  This  bill  simply  provided  for  the  ad 
mission  of  the  Territory  into  the  Union  upon  the  usual  condi 
tions  relating  to  the  public  lands,  though  in  its  preamble  was 
inserted  a  recital  recognizing  the  validity  of  the  Lecompton 
Constitution.  The  opponents  of  the  bill  resisted  it  mainly  on 


474  HOW  CONSTITUTIONS  SHOULD  BE   SUBMITTED. 

the  ground  that  the  Constitution  had  not  been  submitted  to  the 
inhabitants  of  the  Territory  bond  fide,  but  in  such  a  manner  that 
no  elector  could  vote  against  the  provision  establishing  slavery, 
without  voting  at  the  same  time  for  the  residue  of  the  Consti 
tution  as  a  whole.  That  instrument,  it  was  said,  contained,  or 
might  contain,  provisions  as  distasteful  to  the  people  as  that 
relating  to  slavery,  and  yet,  in  order  to  vote  against  the  latter, 
they  must  vote  in  favor  of  the  former,  —  a  dilemma  into  which 
no  Convention  was  justified  in  bringing  those  for  whom  they 
were  pretending  to  act.  Notwithstanding  all  these  objections, 
the  bill  was  carried  through  the  Senate  by  a  vote  of  33  to  25. 
This  bill  being  sent  to  the  House,  there  was  moved  as  a  substi 
tute  for  it  another,  providing  for  the  admission  of  Kansas  into 
the  Union,  but  containing  a  clause  requiring  the  Constitution 
to  be  again  submitted  to  the  people,  and  authorizing  the  inhabi 
tants,  in  case  of  its  rejection,  to  form  for  themselves  a  Constitu 
tion  and  State  government.  The  first  section,  after  the  usual 
words  importing  the  admission  of  the  State  into  the  Union,  con 
tained  the  following  significant  recital :  "  But,  inasmuch  as  it  is 
greatly  disputed  whether  the  Constitution,  framed  at  Lecomp- 
ton  on  the  7th  day  of  November  last,  and  now  pending  before 
Congress,  was  fairly  made,  or  expressed  the  will  of  the  people 
of  Kansas,  this  admission  of  her  into  the  Union  as  a  State  is 
here  declared  to  be  upon  this  fundamental  condition  precedent, 
namely :  that  the  said  constitutional  instrument  shall  be  first 
submitted  to  a  vote  of  the  people  of  Kansas,  and  assented  to 
by  them,  or  a  majority  of  the  voters,  at  an  election  to  be  held 
for  the  purpose,"  &c.,  &c.  Then  followed  a  specification  of  the 
mode  of  taking  the  vote,  by  ballots  "  for  the  Constitution,"  or 
"  against  the  Constitution,"  and  careful  provisions  for  determin 
ing  the  qualifications  of  voters  and  for  insuring  an  honest  and 
complete  vote. 

The  vote  in  the  House  on  this  substitute  for  the  Senate  bill 
was  120  to  112. 

§  519.  The  two  houses  being  thus  at  variance,  and  refusing 
to  agree,  a  committee  of  conference  was  appointed  in  the  House 
by  the  casting  vote  of  the  Speaker,  by  which  a  bill  was  reported 
commonly  known  as  the  "  English  Bill,"  which  was  accepted  by 
both  houses  April  30th,  1858,  and  became  a  law. 

Although,  as  we  have  seen,  strict  principle  did  not  require  the 


HOW    CONSTITUTIONS   SHOULD   BE    SUBMITTED.  475 

submission  of  the  Constitution,  by  Congress,  to  the  inhabitants 
of  the  Territory  at  all,  yet,  as  that  body  undertook,  by  the  Eng 
lish  Bill,  to  make  such  submission,  it  would  be  expected  some 
mode  would   be    adopted   that   should   be  fair   and   adequate. 
Such,  however,  was  not  the  fact.     After  reciting  the  framing  of 
the  Constitution,  and  that  the  Ordinance  accompanying  it,  con 
taining  propositions  in  behalf  of  the  Territory  for  the  accept 
ance  of  Congress,  was  unacceptable  to  the  latter,  the  Act  pro 
vided  that  the   State  of  Kansas  should  be  admitted  into  the 
Union  under  said  Constitution,  when  its  people  should  have 
voted  to  accept  the  proposition  thereby  made,  which  was  two 
fold,  first,  donating  to  the  new  State,  with  great  liberality,  pub 
lic  lands,  salt-springs,  and  the  proceeds  of  the  sales  of  the  pub 
lic  domain  within  its  limits,  for  various  public  purposes ;  and, 
secondly,  limiting,  in  the  terms  usual  in  such  Acts,  the  power 
of  the  State  to  interfere  with  the  primary  disposal  of  the  lands 
of  the  United  States,  or  to  tax  said  lands  or  the  property  of 
the  United  States.     The  Act  then  provided,  that  at  said  elec 
tion  the  voting  should  be  by  ballot,  and  by  indorsing  on  his 
ballot,  as  each  voter  might  be  pleased,  "  Proposition  accepted," 
or  "  Proposition  rejected ; "  and  that,  if  a  majority  of  the  votes 
should   be  for  "  Proposition    accepted,"   the    President   of   the 
United  States  should  by  proclamation  announce  the  same,  and 
the  State  thereupon,  without  further  action  of  Congress,  should 
become  one  of  the  States  of  the  Union.     But.  should  a  major 
ity   of  the  votes  cast  be   for  "  Proposition    rejected,"  the   Act 
further  provided,  that  it  should  be  deemed  and  held,  that  the 
people  of  Kansas  did  not  desire  admission  into  the  Union  with 
said  Constitution,  under  the  conditions  set  forth  in  said  proposi 
tion,  in  which  event  they  were  authorized  to  form  for  themselves 
a  Constitution  and  State  government,  whenever,  and  not  before, 
it  should  be  ascertained  by  a  census  duly  and  legally  taken,  that 
the  population  of  said  Territory  equalled  or  exceeded  the  ratio 
of  representation  required  for  a  member  of  the  House  of  Repre 
sentatives  of  the  Congress  of  the  United  States,  which,  at  that 
time,  was  one  representative  to  93,340  inhabitants. 

The  mode  of  submission  thus  skilfully  devised  was  objec 
tionable  on  three  grounds  :  first,  it  was  a  submission  in  solido 
of  an  entire  Constitution,  generally  acceptable,  perhaps,  but 
containing  one  or  more  clauses  which  were  obnoxious  to  a  large, 


476  HOW   CONSTITUTIONS   SHOULD   BE   SUBMITTED. 

if  not  to  the  major,  part  of  the  State.  But,  lest  hostility  to  the 
clause  establishing  slavery  should  lead  to  the  rejection  of  the 
whole  instrument,  and  thus  the  opportunity  be  lost  of  bringing 
into  the  Union  another  slave  State,  there  were  provided,  sec 
ondly,  a  bribe,  to  induce  a  favorable  vote  —  the  proposition 
above  described  containing  unusually  liberal  donations  of  pub 
lic  lands  to  the  State,  in  case  it  should  accept  the  whole  scheme 
—  a  proffer  morally  as  nefarious  as  that  made  by  Satan  to  the 
Saviour  of  mankind,  of  all  the  kingdoms  of  this  world,  if  He 
would  bow  down  and  worship  him  ;  and,  thirdly,  a  threat,  to 
deter  from  its  rejection,  involved  in  that  provision  of  the  Act, 
which  authorized  the  Territory  to  frame  another  Constitution 
only  when  its  population  should  be  at  least  93,340,  —  a  condi 
tion  which,  if  enforced,  might  exclude  it  from  the  Union  for  years. 

§  520.  It  is  needless  to  say,  that  the  inhabitants  of  Kansas 
contemned  both  the  bribe  and  the  threat,  and  rejected  the  Con 
stitution  finally,  by  an  overwhelming  vote. 

In  reviewing  these  proceedings,  the  wonder  is,  that  Congress, 
having  the  power  to  admit  the  Territory,  without  submitting  to 
its  inhabitants  at  all,  the  Constitution,  certified  to  it  by  a  Con 
vention  of  its  people,  as  having  been  regularly  adopted,  should 
have  thought  it  worth  while  to  commit  a  piece  of  injustice  so 
elaborate  and  so  useless,  as  was  involved  in  this  act.  But  that 
it  did  so,  indicates  unmistakably,  that  the  true  principles  of 
Constitution-making,  one  of  which  is,  that  submission  should 
be  made  of  every  proposition  to  change  or  to  establish  a  funda 
mental  law,  to  those  to  be  affected  thereby,  were  well  understood, 
and  that  those  principles,  upon  an  equitable  view,  were  thought 
to  cover  as  well  the  case  of  Territories,  notwithstanding  their 
condition  of  pupilage  or  subjection,  as  of  States  exercising  the 
rights  of  sovereignty.  The  reason  for  the  course  taken  by  Con 
gress  was  that,  under  the  inspiration  of  pro-slavery  fanaticism, 
it  desired,  while  it  seemed  justly  and  fairly  to  apply  those  prin 
ciples,  in  reality  to  trample  them  in  the  dust,  in  order  that  slavery 
might  be  planted  on  the  soil  of  Kansas.  Happily,  however,  "  the 
engineer  was  hoist  with  his  own  petar  "  -  a  measure  intended 
to  fasten  slavery  upon  the  Union  forever,  was  the  step  too  far, 
which,  inaugurating  a  bloody  revolution,  resulted  in  giving  the 
death-blow  to  that  institution  itself.  The  lesson  thus  learned, 
at  such  infinite  cost,  exemplifying  the  maxim  that  "  honesty  is 


PROMULGATION   OF   CONSTITUTIONS.  477 

the  best  policy,"  is  not  likely  to  be  soon  forgotten.  It  has  already 
been  productive  of  good ;  for,  since  the  discussions  upon  the  ad 
mission  of  Kansas  into  the  Union,  all  enabling  Acts  contain 
minute  provisions  for  taking  fairly  the  sense  of  the  inhabitants 
of  the  territories  upon  the  Constitutions  thereby  authorized  to 
be  framed. 

§  521.  V.  It  now  remains  only  to  consider  briefly  the  crown 
ing  act  by  which  changes  in  the  fundamental  law  are  consum 
mated,  or  the  results  of  submission  certified  and  announced. 
The  necessity  of  some  such  act,  which  should  be  authentic  and 
final,  is  apparent,  when  it  is  considered  that,  without  it,  painful 
embarrassments  might  arise,  in  the  minds  of  both  governors  and 
governed,  as  to  their  powers  or  duties  in  particular  cases.  It  is 
obvious,  also,  that  the  announcement  that  a  new  organic  law  or 
code  of  laws  had  been  adopted  and  put  in  force,  ought  to  ema 
nate  from  some  department  of  the  existing  government. 

In  the  case  of  the  ordinary  statute  law,  the  necessity  for  an 
authentic  promulgation  is  always  recognized,  and  it  is  carefully 
provided  for.     Before  such  a  law  can  take  effect,  it  must,  by  our 
Constitutions,  have  been  separately  passed  by  the  two  houses 
of  the  legislature,  have  been  signed  by  their  respective  Speakers, 
and  by  the  Executive ;  and,  finally,  must  await  the  arrival  of  the 
day  fixed  for  it  to  become  in  force.     In  the  mean  time  provision 
is  made  for  publishing  it  throughout  the  sphere  of  its  operation. 
With  all  this  extreme  care,  doubts  not  unfrequently  arise  whether 
or  not  a  particular  law  was  so  passed  as  to  be  legally  binding. 
To  give  still  greater  certainty,  therefore,  it  is  commonly  required, 
that  the  various  steps,  as  well  legislative  as  executive,  taken  in 
the  progress  of  a  bill  to  a  law,  shall  be  made  matters  of  record, 
so  that  courts  and  individuals  interested  may  always  determine 
with  precision  whether  any  proposition  did  or  did  not  become  a 
law.    If  such  particularity  and  caution  are  necessary  in  ordinary 
statutes,  of  which   the  effects  are  temporary  and  partial,  they 
would  seem  to  be  proportionately  more  so,  when  the  laws  are 
fundamental,  and  their  effects  permanent  and  general.     In  look 
ing,  however,  at  the  precedents,  we  fail  to  find  in  many  cases  a 
conformity  to  the  requisites  of  sound  principles,  while  there  is 
apparent,  in  regard  to  them,  an  amount  of  ignorance  or  indiffer 
ence,  for  which  it  is  difficult  to  account. 

§  522.    Of  some  of  the  earliest  Constitutions,  proclamation 


478  PROMULGATION   OF   CONSTITUTIONS. 

was  made  by  a  solemn  act  of  the  public  authorities,  accompa 
nied  by  appropriate  ceremonies.  Thus,  in  the  case  of  the  New 
York  Constitution  of  1777,  adopted  in  Convention  April  20th, 
publication  was  made  on  the  22d  of  the  same  month,  at  the 
Court- House  in  Kingston,  "  from  a  platform  erected  on  the  end 
of  a  hogshead,"  the  vice-president  of  the  existing  government 
presiding.  The  revised  Constitution  of  New  Hampshire  of 
1783,  "  was  introduced  at  Concord  by  a  religious  solemnity ; " 
and  that  of  Pennsylvania  of  1790,  by  an  imposing  procession 
of  all  the  officers  of  the  State,  the  members  of  the  Convention, 
and  of  the  civic  societies  of  Philadelphia,  in  the  course  of  which 
the  Constitution  was  formally  proclaimed  at  the  Court- House  in 
Market  Street. 

The  above  were  all  instances  of  Constitutions  put  in  opera 
tion  without  submission,  except  that  of  New  Hampshire  of 
1783.  Where  submission  to  the  people  has  been  made,  the 
course  very  generally  adopted  has  been  to  require  the  returns  of 
the  election  to  be  made  from  the  several  districts  to  the  Secre 
tary  of  State,  to  be  canvassed  by  him  and  the  other  great  offi 
cers  of  the  State,  often  in  the  presence  of  such  citizens  as  may 
choose  to  witness  the  proceeding ;  and,  finally,  the  results  of  the 
canvass  have  been  announced  to  the  people  by  a  proclamation 
of  the  Governor  —  the  Constitution  thereupon  taking  effect  as 
such.1  In  many  cases  the  Constitution  has  required  that  the 
people  should  vote  for  or  against  the  Constitution,  and,  if  there 
should  be  a  majority  for  it,  the  Governor  should  make  proclama 
tion  of  that  fact,  but  provided  no  mode  of  certifying  the  returns 
of  the  election  to  that  officer.2  In  the  two  last  Conventions  of 
Virginia,  in  1829  and  1850,  and  in  that  of  Maryland  of  1864, 
provision  was  made  merely  for  a  proclamation  of  the  result  of 
the  election  by  the  Governor.3 

l  This  course  was  pursued  in  the  following  Conventions :  — New  York,  1821 ; 
Louisiana,  1844,  1852,  and  1864;  Illinois,  1847  and  1862;  Michigan,  1850; 
California,  1849;  Tennessee,  1834;  Ohio,  1850;  and  Oregon,  1857. 

^  It  was  so  done  in  ]N"orth  Carolina,  1835;  Texas,  1845;  Wisconsin,  1848; 
and  Iowa,  1857. 

3  In  the  last-named  State,  a  question  arose  in  1864  respecting  the  nature  of 
the  power  given  to  the  Governor  by  the  Convention  Act  to  pass  upon  the 
returns  of  the  election  at  which  the  Constitution  of  that  year  was  voted  on  by 
the  people,  which  has  been  the  subject  of  adjudication  by  the  Court  of  Appeals 
of  that  State. 


PROMULGATION   OF   CONSTITUTIONS.  479 

§  523.  Some  of  the  above  modes  of  announcement  are  suffi 
ciently  indefinite.  Others  have  been  practised,  however,  that 
are  still  more  so.  Thus,  in  the  Maryland  Convention  of  1850, 
and  that  of  Minnesota  of  1857,  the  Schedules  merely  provided 
that,  if  a  majority  of  all  the  votes  cast  should  be  for  the  Con 
stitutions  submitted,  the  same  should  be  deemed  to  be  adopted 
as  the  Constitutions  of  those  States  respectively.  The  Massa 
chusetts  Convention  of  1779,  and  that  of  Kentucky  of  1849, 
adopted  still  a  different  mode  of  announcing  the  result  of  the 
submission  to  the  people.  Having  matured  their  respective 
Constitutions,  and  provided  for  a  vote  of  the  people  upon  them 
on  a  certain  day,  they  adjourned  to  a  day  subsequent  to  that 
fixed  for  the  election,  at  which  time  they  reassembled,  received 
the  returns  of  the  elections,  and  announced  their  results  to  the 
people  by  proclamation.  A  different  mode  was  adopted  by  the 
last  two  Conventions  of  Massachusetts  —  those  held  in  1820  and 
1853.  The  returns  of  the  elections  were  made  to  the  Secretary 
of  the  Commonwealth,  were  canvassed,  and  the  votes  counted 
by  committees  of  the  Conventions,  appointed  for  that  purpose 
previously  to  their  dissolution,  and  proclamation  of  the  results 
made  by  the  Governor.  In  the  Pennsylvania  Convention  of 
1837,  the  returns  of  the  elections  were  opened  by  the  Speaker 
of  the  Senate,  in  joint  session  of  the  two  houses,  the  result  pub 
licly  announced  by  him,  and  a  formal  certificate  of  that  fact 
made  and  filed  among  the  public  archives. 

The  Constitution  having  been  submitted  to  the  people  under  regulations 
restricting  the  risjht  to  vote,  within  the  State,  to  qualified  electors  who  should 
have  taken  a  prescribed  oath,  but  permitting  soldiers  in  the  service  of  the 
United  States  to  vote  outside  the  limits  of  the  State,  the  returns  of  the  election 
coming  into  the  hands  of  the  Governor  to  be  counted,  an  application  was  made 
to  the  Superior  Court  of  Baltimore  City  for  a  rule  upon  the  Governor  to  show 
cause  why  a  mandamus  should  not  be  issued  commanding  him,  in  ascertaining 
the  number  of  votes  cast  at  the  said  election,  to  count  certain  votes  tendered 
and  rejected  because  the  required  oath  had  not  been  taken,  and  to  exclude  cer 
tain  others  cast  by  soldiers  beyond  the  limits  of  the  State. 

The  application  being  refused,  the  case  was  carried  to  the  Court  of  Appeals, 
by  which  the  judgment  of  the  court  below  was  affirmed,  a  majority  of  the  court 
holding  that  the  power  to  pass  upon  the  returns  in  such  a  case  was  a  political 
and  not  a  judicial  power,  and,  therefore,  was  not  subject  to  revision  by  the  judi 
cial  tribunals.  See  Miles  v.  Bradford,  Governor  of  Maryland,  22  Md.  R.  170, 
(decided  at  the  June  Term,  1864.)  For  a  complete  statement  of  the  facts  of 
this  case,  including  the  proceedings  in  the  court  below,  see  Deb.  Md.  Conv.  1864, 
Vol.  111.  Appendix. 


480  PROMULGATION   OF  CONSTITUTIONS. 

§  524.  In  case  of  the  Territories,  the  proper  authority  to  make 
the  announcement  is  evidently  the  government  of  the  Union, 
representing  the  people  thereof.  Accordingly,  the  mode  of  offi 
cially  making  known  the  establishment  of  a  new  Constitution, 
and  the  contemporaneous  birth  of  a  new  State,  is  for  Congress 
either  to  pass  an  Act  reciting  the  framing  of  the  Constitution, 
that  it  is  republican  in  form,  and  concluding  with  a  declaration 
that  the  Territory  is  thereby  admitted  into  the  Union,  or  to  an 
ticipate  the  action  of  the  Territorial  Convention  by  providing 
that  such  a  body  might  meet  to  frame  a  Constitution  and  State 
government,  or  to  accept  conditions  of  admission  into  the  Union 
imposed  by  Congress,  —  their  Constitution  having  been  already 
formed,  —  and  that,  thereupon,  if  the  action  of  the  Convention 
should  be  favorable,  its  results  should  be  announced  by  a  procla 
mation  of  the  President,  and  the  admission  of  the  Territory  into 
the  Union  be  complete. 

Of  all  the  modes  of  announcement  above  described,  that  by 
a  formal  proclamation  is  clearly  the  most  conformable  to  theo 
retical  principles,  and  the  most  satisfactory  in  a  practical  point 
of  view.  From  this  there  is,  however,  a  descent  through  various 
gradations  until  modes  of  promulgation  are  reached,  which  are 
so  indefinite  and  so  inadequate,  that  it  seems  a  matter  of  the 
greatest  good  fortune  that  serious  embarrassments  have  not  fol 
lowed  their-  adoption.  Thus,  take  the  cases  in  which  it  was 
provided  that  the  Constitutions  should  go  into  effect,  if  adopted 
by  a  majority  of  the  votes  cast  at  an  election  on  a  day  fixed, 
but  in  which  no  provision  whatever  was  made  for  a  canvass  of 
the  returns  of  the  election,  or  for  a  promulgation,  by  some  recog 
nized  official  authority,  of  its  results.  That  disputes  have  not 
arisen  involving  the  validity  of  the  fundamental  Acts  thus  loosely 
ushered  into  the  world,  is  due,  not  to  the  sufficiency  of  the  pro 
cesses  by  which  they  were  promulgated,  but  to  the  peace  and 
order  of  the  times,  and  the  utter  absence  of  motive  to  raise, 
respecting  their  validity,  even  a  doubt. 


CHAPTER   VIII. 

§  525.  As  the  plan  of  this  treatise  extends  only  to  a  discus 
sion  of  the  Convention,  the  mode  of  initiating  or  calling,  and 
of  organizing  it,  its  functions,  powers,  and  modes  of  proceeding, 
the  foregoing  chapters  would  seem  to  complete  the  circle,  and 
to  render  improper  the  consideration  of  other  topics  not  strictly 
within  that  plan.  But  while  this  is,  in  the  main,  true,  it  may, 
nevertheless,  be  useful  to  touch  upon  the  subject  of  constitu 
tional  provisions  for  amending  Constitutions.  And,  in  one  view 
of  it,  a  discussion  of  that  topic  may  be  regarded  as  logically 
involved  in  an  exhaustive  treatise  upon  the  Convention  system. 
We  have  seen,  that  the  creation  or  renovation,  by  an  organized 
political  society,  of  its  Constitution  of  government,  is  analogous 
to  the  exercise  of  the  procreative  function  in  animals  —  obvi 
ously,  an  important  topic  in  their  natural  history  —  and,  as  the 
Convention  is  the  principal  organ  through  which  the  political 
body  effects  changes  in  its  Constitution,  whether  extending  to  its 
transformation  or  to  its  mere  reparation,  no  discussion  of  that 
organ  would  be  complete  which  should  overlook  the  Constitu 
tional  provisions  regulating  its  use  and  operation,  or  which 
should  omit  to  state  its  excellences  and  defects  as  compared 
with  those  of  other  modes  of  attaining  the  same  ends. 

§  526.  By  the  principles  of  general  law,  the  right  of  a  people, 
at  any  time,  to  recast  their  political  institutions,  cannot  be  de 
nied.  The  questions  upon  which  difficulties  arise,  are,  as  to  the 
extent  to  which  it  may  be  done,  under  given  circumstances, 
without  endangering  the  entire  system,  as  to  the  modes  of  doing 
it,  and  the  instruments  through  which  it  shall  be  effected.  These 
questions,  recurring  under  all  forms  of  government,  receive  vari 
ous  answers,  according  to  their  respective  circumstances  and 
conditions.  The  cluster  of  States  forming  the  American  system 
are  so  dissimilar  to  those  of  Europe,  in  any  age,  that  little  light 
can  be  drawn,  in  this  respect,  from  the  practice  of  the  latter,  or 
31 


482  AMENDMENT   OF   CONSTITUTIONS. 

from  the  writings  of  their  statesmen  and  publicists.  Between 
England  and  the  United  States,  there  is,  it  is  true,  the  sympathy 
of  race,  and  the  institutions  of  the  former  were  the  model  after 
which  those  of  the  latter  were  built ;  but  the  imitation  was  not 
close,  and  in  many  of  their  most  important  features  the  institu 
tions  of  the  two  countries  are  as  variant  as  are  those  of  England 
and  Austria.  The  provisions  of  the  English  Constitution  for 
effecting  changes  in  itself  are  unique,  being  the  fruits  of  the 
signal  victory  by  which  the  Parliament  in  1688  became  the  dom 
inant  power  in  the  realm.  Ever  since  that  revolution,  to  that 
body  has  been  conceded  the  power  to  enact  fundamental,  as  it 
does  the  statute  laws,  by  bill  passed  through  the  regular  stages 
of  legislation,  and  approved  by  the  sovereign. 

In  America  it  was  early  felt  in  many  of  the  States  that 
although  the  governments  succeeding  to  the  colonial  establish 
ments  were  based  upon  the  will  of  the  people,  limitations  must 
be  imposed  upon  the  latter  in  regard  to  amending  their  Consti 
tutions.  The  wisest  statesmen  of  the  time  saw  that,  in  a 
country  where  the  people  were  admitted  to  a  direct  participa 
tion  in  the  government,  party  passions  and  interests  would  be 
likely  to  lead  to  too  much  tampering  with  Constitutions,  if 
effectual  checks  were  not  interposed.  They,  therefore,  framed 
governments  which,  in  this  particular,  departed  from  the  Eng 
lish  model.  Their  Constitutions,  purporting  to  define  the 
powers  of  the  several  branches  of  the  government,  in  no  case 
permitted  definitive  amendments  by  the  legislature,  and  most  of 
them  omitted  all  mention  of  the  power  of  amendment.  A  few, 
as  the  Articles  of  Confederation,  the  Federal  Constitution,  and 
those  of  Maryland  and  of  Delaware,  framed  in  1776,  gave  that 
power  to  the  legislature,  but  under  restrictions  which  reduced  it 
far  below  the  power  so  familiar  to  our  fathers  in  the  Parliament ; 
and  two  made  provision  for  Conventions  to  be  called  for  that 
purpose,  also  under  restrictions, —  those  of  Pennsylvania  and 
Vermont. 

§  527.  But  it  would  be  wrong  to  imagine  the  existence  among 
the  people  of  the  United  States,  during  the  Revolutionary 
period,  of  a  ripened  public  opinion  on  the  subject  of  amending 
their  Constitutions.  There  was,  even  in  the  States  most  noted 
for  their  steadfast  zeal  in  the  cause  of  liberty,  a  great  lack  of 
sound  views  of  the  power  of  the  people  over  the  institutions 


AMENDMENT   OF  CONSTITUTIONS.  483 

they  had  founded,  and  of  the  safe  methods  of  perfecting  them. 
Thus,  in  Massachusetts,  whose  first  Constitution  contained  no 
provision  for  amendments,  the  doctrine  of  the  Revolution,  that 
governments  were  founded  by  the  people,  and  could  be  amended 
by  them  as  they  should  think  fit,  was  erroneously  understood 
to  warrant  tumultuous  assemblages  of  citizens,  without  legal 
authority,  to  dictate  to  the  government  not  only  its  current 
policy,  but  amendments  of  the  fundamental  law.  Shay's  Rebel 
lion  was  the  natural  outgrowth  of  such  views,  quickened,  doubt 
less,  by  the  distress  almost  universal  in  a  community  not  yet 
recovered  from  the  effects  of  a  long  war.1  The  first  batch  of 
American  Constitutions,  moreover,  were  many  of  them  framed 
in  extreme  haste,  for  temporary  purposes,  when  little  was 
thought  or  known  of  the  best  modes  of  constructing  or  amend 
ing  such  instruments.  In  several  instances  the  State  govern 
ments  were  intended  to  be  mere  provisional  organizations,  to  be 
laid  aside,  not  when  new  and  better  ones  should  be  provided, 
but  upon  the  expected  contingency  of  a  peace  with  England, 
following  as  a  consequence  of  a  redress  of  grievances.  The  re 
sult  was,  that  the  Constitutions  first  framed  generally  contained 
no  provision  for  their  future  amendment,  since  the  necessity  of 
amendment  was  not  at  that  time  apprehended. 

§  528.  But  silence  upon  a  subject  of  such  importance  was 
liable  to  misconstruction,  and  was  therefore  dangerous.  Hence 
the  policy  of  regulating  by  express  constitutional  provisions  the 
exercise  of  so  important  a  power  soon  began  to  be  generally 
apparent.  In  several  of  the  States  the  clauses  of  the  Constitu 
tions  relating  to  amendments  have  been  couched  in  negative 
terms,  interdicting  amendments  except  in  the  cases  and  modes 
prescribed.  In  a  majority  of  the  cases,  however,  they  have 
been  permissive,  pointing  out  modes  in  which  Conventions  may 
be  called,  or  specific  amendments  effected,  without  terms  of 
restriction,  or  allusion  to  other  possible  modes. 

But  however  liberal  these  provisions  may  seem  to  be,  restric 
tion  is  really  the  policy  and  the  law  of  the  country.  By  the 
common  law  of  America,  originating  with  the  system  we  are 
considering,  and  out  of  the  same  necessities  which  gave  the  lat 
ter  birth,  it  is  settled,  that  amendments  to  our  Constitutions  are 
to  be  made  only  in  modes  pointed  out  or  sanctioned  by  the 
l  Curtis'  Hist.  Const.  U.  £,  Vol.  I.  pp.  261-264. 


484  AMENDMENT   OF   CONSTITUTIONS. 

legislative  authority,  the  legal  exponent  of  the  will  of  the  ma 
jority,  which  alone  is  entitled  to  the  force  of  law.1  The  mode 
usually  employed  is  that  of  summoning  a  Convention  ;  and  it 
is  doubtful  if  any  means  are  legitimate  for  the  purpose  indi 
cated  but  Conventions,  unless  ^employed  under  an  express  war 
rant  of  the  Constitution.  The  idea  of  the  people  thus  restrict 
ing  themselves  in  making  changes  in  their  Constitutions  is  orig 
inal,  and  is  one  of  the  most  signal  evidences  that  amongst  us 
liberty  means  not  the  giving  of  rein  to  passion  or  to  thought 
less  impulse,  but  the  exercise  of  power  by  the  people  for  the 
general  good,  and,  therefore,  always  under  the  restraints  of  law. 
§  529.  But,  while  the  framers  of  our  Constitutions  have 
sought  to  avoid  the  dangers  attending  a  too  frequent  change 
of  their  fundamental  codes,  they  have  adverted  to  an  opposite 
danger,  to  be  equally  shunned — that  of  making  amendments 
too  difficult.  With  a  view  to  obviate  this  danger,  in  all  our 
late  Constitutions  there  have  been  inserted  special  provisions, 
the  tenor  of  which  will  be  explained  hereafter.  The  general 
principle  governing  their  selection,  and,  in  truth,  lying  at  the 
foundation  of  the  whole  subject,  as  a  branch  of  practical  poli 
tics,  is  this  :  Provisions  regulating  the  time  and  mode  of  effect 
ing  organic  changes  are  in  the  nature  of  safety-valves,  —  they 
must  not  be  so  adjusted  as  to  discharge  their  peculiar  function 
with  too  great  facility,  lest  they  become  the  ordinary  escape- 
pipes  of  party  passion  ;  nor,  on  the  other  hand,  must  they  dis 
charge  it  with  such  difficulty  that  the  force  needed  to  induce 
action  is  sufficient  also  to  explode  the  machine.  Hence  the 
problem  of  the  Constitution-maker  is,  in  this  particular,  one  of 
the  most  difficult  in  our  whole  system,  to  reconcile  the  requisites 
for  progress  with  the  requisites  for  safety.2  This  problem  can- 

1  See  Curtis'  Hist.  Const.  U.  S.,  Vol.  I.  pp.  261-264. 

2  Mr.  John  Stuart  Mill  thus  states  the  problem  :  —  "  No  government  can 
now  expect  to  be  permanent  unless  it  guarantees  progress  as  well  as  order ;   nor 
can  it  continue  really  to  secure  order  unless  it  promotes  progress.     It  can  go  on, 
as  yet,  with  only  a  little  of  the  spirit  of  improvement.     While  reformers  have 
even  a  remote  hope  of  effecting  their  objects  through  the  existing  system,  they 
are  generally  willing  to  bear  with  it.     But,  when  there  is  no  hope  at  all,  — 
when  the  institutions  themselves  seem  to  place  an  unyielding  barrier  to  the 
progress  of  improvement,  —  the  advancing  tide  heaps  itself  up  behind  them  till  it 
bears  them  down." —  The  French  Revolution  and  its  Assailants,  in  "Miscel 
lanies." 


DIFFERENT   MODES   OF   AMENDING   CONSTITUTIONS.  485 

not  be  yet  regarded  as  solved,  though  we  are  doubtless  approxi 
mating  to  a  solution.  Every  new  Constitution  gathers  up  the 
fruits  of  past  experience,  and  in  turn  contributes  something 
to  the  common  stock.  We  have  reached  such  a  stage  that 
the  provisions  of  our  latest  Constitutions  may  be  considered 
as  adequate  to  all  ordinary  exigencies  of  our  condition.  No 
community  of  American  citizens  would  be  badly  provided  for, 
were  it  compelled  to  accept  any  one  of  a  score  of  Constitu 
tions  now  in  force  amongst  us,  without  modification,  save  in 
unimportant  particulars  depending  on  provisions  merely  local 
in  effect. 

§  530.  Having  thus  formed  a  general  conception  of  the  doc 
trine  of  amendments  in  the  American  system,  I  pass  to  inquire, 
—  I.  What  modes  have  been  provided  by  our  various  Constitu 
tions  for  effecting  them  ?  II.  What  are  their  comparative  ex 
cellences  and  defects  ? 

I.  There  are  two  modes  of  effecting  amendments,  thus  far 
devised :  first,  that  by  the  agency  of  Conventions  ;  and,  sec 
ondly,  that  by  the  agency  of  our  General  Assemblies,  without 
Conventions  —  both  regularly  followed  by  a  ratification  by  the 
people. 

Of  the  whole  number  of  our  Constitutions  to  which  I  have 
had  access,1  forty-four  have  contained  provisions  for  making 
amendments  through  Conventions,  and  forty-three  through  the 
intervention  of  the  legislature,  —  commonly  called  the  specific 
mode,  from  the  fact  that  it  is  used  for  effecting  specific  amend 
ments,  generally  few  and  relatively  unimportant.  Of  the  forty- 
four  which  have  provided  for  Conventions,  twenty  have  provided 
also  for  amendments  by  the  specific  mode,  so  that  these  latter 
figure  in  both  lists.  Stating  the  result  in  another  way,  twenty- 
four  Constitutions  have  contained  provisions  a  thorizing  the  call 

i  The  number  of  Constitutions  is  obviously  less  than  that  of  Conventions, 
since  many  of  the  latter  have  framed  no  Constitutions,  but  only  amendments, 
of  so  little  importance  that  they  have  not  been  incorporated  in  their  respective 
Constitutions,  but  merely  appended  to  them ;  and  many  which  have  framed  so- 
called  Constitutions  have  been  revolutionary  bodies,  for  which  reason  the  results 
of  their  labors  have  been  repudiated  as  of  no  validity,  and  I  make  no  account 
of  them. 

A  considerable  number  of  Constitutions,  moreover,  known  to  exist,  I  have 
not  been  able,  after  much  research,  to  find  at  all.  I  have  succeeded  in  ferret 
ing  out  about  eighty,  referred  to  in  the  next  succeeding  note. 


486  PRECEDENTS. 

of  Conventions  only ;  twenty -three,  authorizing  the  enactment 
of  amendments  in  the  specific  mode  only ;  and  twenty,  in 
both  modes.  Beside  these,  ten  Constitutions  known  to  me 
have  contained  no  provision  whatever  relating  to  the  subject; 
and  one,  that  of  Georgia  of  1777,  contained  provisions  for  that 
purpose,  but  of  what  nature  I  have  been  unable  to  ascertain.1 

§  531.  From  the  foregoing  statement,  it  is  evident  that  the 
two  modes  of  amending  Constitutions  are  of  about  equal  an 
tiquity  and  about  equal  authority.  The  specific  mode  origi 
nated  with  the  Continental  Congress,  and  its  particulars  were,  in 
that  case,  determined  by  the  relations  of  the  Confederation  to 
the  States.  The  mode  of  amending  or  revising  by  Conventions 
called  for  that  purpose,  was  first  adopted  by  Pennsylvania  in 
1776,  from  which  State  it  was,  in  the  following  year,  borrowed 
by  Vermont.  These  two  modes,  devised  thus  in  the  first  years 
of  our  independence,  have  -kept  pretty  equal  pace  throughout 
the  whole  range  of  our  constitutional  history,  some  Constitu 
tions  adopting  one  mode  and  some  the  other ;  but,  for  the  first 

1  The  Constitutions  comprised  in  the  various  classes  indicated,  with  the  dates 
at  which  they  were  framed,  are  shown  in  the  following  lists  —  reckoning  as 
Constitutions  as  well  amendments  as  complete  revisions  :  — 

1.  Constitutions  which  have  authorized   amendments  through   Conventions 
only:  — Those    of  Pennsylvania,   1776;    Vermont,    1777,    1786,    1793,    1822, 
1828,  1836,  1843,  1850,  and  1857  ;  Georgia,  1789  ;  Kentucky  and  New  Hamp 
shire,  1792;  Tennessee,  1796;  Kentucky,  1799;  Ohio,  1802;  Louisiana,  1812; 
Indiana,  1816  ;  Illinois,  1818  ;  Iowa,  1846  ;  Kentucky,  1849  ;  New  Hampshire, 
1850;  Maryland,  1851  ;  Kansas,  1857. 

2.  Constitutions  authorizing  amendments  in  the  specific  mode  only  :  —  Those 
of  Maryland  and  Delaware,  1776;   the  Articles  of  Confederation,   1781;   the 
Constitutions  of  Georgia,  1798  ;  Connecticut,  1818  ;  Alabama  and  Maine,  1819  ; 
Missouri,  1820;  Massachusetts  and  New  York,  1821;  Mississippi,  1832;  Ten 
nessee,  1834  ;  Arkansas,  1836  ;  Pennsylvania,  1838  ;  Rhode  Island,  1842  ;  New 
Jersey,  1844  ;   Louisiana  and  Texas,  1845  ;   Missouri,    1846  ;  Indiana,    1851  ; 
Louisiana,  1852;  Oregon,  1857;  Missouri,  1865. 

3.  Constitutions   authorizing  amendments  in    both  modes :  —  Those  of   the 
United  States,  1787  ;  Delaware,  1792  and  1831 ;  and  Michigan  and  North  Car 
olina,  1835  ;  Florida,  1839  ;  New  York  and  Wisconsin,  1846  ;  Illinois,  1847  ; 
Wisconsin,  1848;  California,  1849;  Michigan,  1850;    Ohio,  1851;   Massachu 
setts,  1853;  Kansas,  1855;  Minnesota  and  Iowa,  1857;  Kansas,  1859;  Illinois, 
1862  ;  West  Virginia,  1863. 

4.  Constitutions  containing  no  provisions  on  the  subject :  —  Those  of  Virginia, 
New  Jersey,  North  Carolina,  and  New  Hampshire,  1776;   New  York,  1777; 
New  Hampshire,  1779  and  1783;  Pennsylvania,  1790;  and  of  Virginia,  1830 
and  1851. 


EXCELLENCES  AND  DEFECTS  OP  THE  MODE  BY  CONVENTIONS.  487 

sixty  years,  only  two  authorizing  both  modes,  that  of  the  United 
States  of  1787,  and  that  of  Delaware  of  1792.  During  the 
period  beginning  with  1830  and  ending  with  1865,  however, 
nine  Constitutions  have  provided  for  amendments  by  Conven 
tions  only,  twelve  in  the  specific  mode  only ;  and  nineteen  in 
both  modes,  showing  a  growing  conviction  that  the  specific 
mode  has  advantages  which  make  its  more  general  adoption 
seem  desirable,  and  yet  that  it  alone  is  not  adequate  to  the  ex 
igencies  of  the  times,  but  needs  to  have  coupled  with  it  a  pro 
vision  for  a  Convention  when  the  people  should  deem  it  necessary 
or  expedient  to  make  a  general  revision  of  the  Constitution. 

§  532.  II.  To  determine  the  excellences  and  defects  of  these 
two  modes  of  amending  Constitutions,  they  must  be  considered 
with  reference  to  their  tendency,  respectively,  to  prevent  or  to 
alleviate  the  three  great  evils  of  popular  government,  —  hasty 
legislation,  excessive  legislation,  and  partisan  legislation.  Let 
us  consider,  from  this  point  of  view, — 

(a).    The  mode  by  Conventions. 

It  is  obvious  that,  were  the  existing  government  of  a  State,  or 
any  branch  of  it,  invested  with  the  power,  without  condition  or 
limit,   to  call    Conventions   to   change  the  organic  law,   there 
would  be  cause  to  apprehend  two  dangers  :  one,  that  the  per 
manent,  and,  therefore,  paramount  and  sacred  character  of  that 
law  would  be  impaired  ;  for,  what  the  government  could  at  any 
time  procure  to  be  changed  or  repealed,  would,  in  effect,  be  but 
an  ordinary  statute ;  the  other,  that  our  Conventions  would  be 
come  the  arenas,  and  our  Constitutions  the  objects  as  well  as 
the  instruments,  of  party  conflict.     The  right  of  the  people,  at 
any  time  to  amend  their  Constitutions  must  be  admitted  ;  but 
as  they  can  never  do  this  directly,  the  necessity  becomes  appar 
ent  of  checks,  to  render  it  probable  that  a  movement  to  that 
end  has  been   sanctioned  by  them,  and  that  it  has  been  done 
upon   due  consideration.     What  those  checks  should  be,  is  a 
problem  of  which  the  conditions  will  vary  with   the   circum 
stances  of  the  case.     In   this  country,  the  difference  between 
States  which  differ  most  is  but  slight,  and  hence  the  results  of 
their  individual  experience  are  in  the  main  equally  useful  to  all. 
Conventions  being  universally  called  amongst  us  by  legislative 
authority,  the  checks  must  be   such   as  will  obviate  the  evils 
above   enumerated,  resulting  from   haste,  excess,  and   partisan 
zeal,  in  legislation. 


488   EXCELLENCES   AND   DEFECTS   OF   THE   MODE   BY   CONVENTIONS. 

§  533.  The  readiest  mode  of  preventing  these  evils  is  either 
to  increase  the  majority  required  to  call  a  Convention,  or  to 
compel  the  submission  of  the  legislative  Act,  passed  for  that 
purpose,  to  the  people,  before  it  shall  take  effect. 

The  first  of  these  checks  would  doubtless  be  efficacious,  un 
less  the  minority,  invested  with  a  veto  upon  the  Act,  were  too 
small.  On  most  questions,  of  whatever  magnitude  or  character, 
if  the  vote  of  a  party  were  sufficient  to  determine  results,  it 
would  be  likely  to  be  cast  as  the  interest  of  the  party  should  re 
quire.  In  the  see-saw  of  politics,  it  is  rare  that  a  party  very  much 
or  very  long  outnumbers  its  antagonist.  Hence,  if  party  major 
ities  were  allowed  free  scope  to  tamper  with  our  organic  laws, 
there  would  be  nothing  stable  in  them.  On  the  other  hand,  if 
a  reform  of  the  fundamental  code  be  really  needed,  men  of  all 
parties  will  admit  the  fact,  or  enough  men  in  all  parties  to  carry 
it.  Should  the  proposed  amendments,  however,  assume  a  parti 
san  character,  or  for  any  other  reason  be  improper  to  be  made 
now,  or  at  all,  there  should  be  no  room  for  danger  of  their 
adoption.  It  seems  evident,  then,  that  where  the  check  is 
sought  in  numbers,  a  majority  is  too  small,  and  a  unanimous 
vote  too  large,  for  either  practicability  or  safety.  A  mean  must 
be  sought  not  liable  to  these  objections,  and  that  not  from  d 
priori  considerations,  but  from  experience.  What  that  mean 
has  generally  been  in  the  practice  of  the  several  States,  will  be 
seen  further  on. 

§  534.  The  second  check,  which  is  found  in  a  submission  of 
the  question  of  calling  a  Convention  to  the  people,  seems  more 
efficacious.  By  the  term  "  people  "  is  meant,  theoretically,  the 
political  society,  but  practically,  as  we  have  seen,  the  body  of 
the  electors,  which  is  its  representative,  at  the  nearest  hand.  The 
views  of  the  latter,  expressed  in  any  mode  adapted  to  its  organ 
ization,  may  more  fairly  be  presumed  to  be  those  of  the  political 
society  than  those  of  any  body  less  numerous  and  further  re 
moved  from  it  ;  and,  therefore,  whenever  the  electors  have 
assented  to  the  call  of  a  Convention,  its  necessity  or  eminent 
propriety  may  be  considered  to  be  beyond  doubt.  Such  a  body 
may  be  swayed  by  passion,  but  it  will  be  by  a  passion  that  is 
national.  A  State,  in  which  the  passion  of  a  majority  of  its 
electors,  on  high  questions  of  fundamental  law,  is  selfish  and 
local,  must  be  near  its  downfall.  At  all  events,  when  a  legisla- 


EXCELLENCES  AND   DEFECTS   OP  MODE  BY   CONVENTIONS.      489 

ture  is  required  to  submit  the  question  of  the  expediency  of 
constitutional  changes  to  the  determination  of  a  body  that 
never  assembles,  that  is  not  easily  approached  for  unworthy 
purposes,  and  that  is,  this  side  the  sovereign  itself,  the  ultimate 
depositary  of  sovereign  rights,  there  is  one  chance  the  more  that 
such  changes  will  not  be  ill-advised.  That  such  a  question 
ought  in  all  cases  to  be  submitted  to  the  people,  has  been 
affirmed  by  what  will  be  conceded  to  be  high  authority.  The 
point  arose  in  New  York  the  year  preceding  the  Convention  of 
1821.  At  an  extra  session  of  the  legislature  in  November,  1820, 
an  Act  had  been  passed  by  both  houses,  by  the  provisions  of 
which  a  Convention  was  to  be  called,  without  referring  the 
question,  in  the  first  instance,  to  the  people,  —  the  delegates  to 
be  chosen  in  February,  1821,  and  the  body  to  convene  in  June 
following.  This  Act  having  been  submitted  to  the  Council  of 
Revision,  composed  of  the  Governor,  the  Judges  of  the  Supreme 
Court,  and  the  Chancellor,  —  a  body  invested  by  the  Constitu 
tion  with  a  negative  on  all  Acts  of  the  legislature,  to  be  over 
come  only  by  a  two-thirds  vote  of  both  houses,  —  it  was  re 
turned  with  their  objections,  and  thereupon  failed  to  become  a 
law.  The  objections  were  drawn  up  by  Chancellor  Kent,  and 
received  the  concurrence  of  Governor  Clinton  and  Chief-Justice 
Spencer,  a  majority  of  the  Council.  The  first  objection  was 
stated  to  be,  because  the  Act  recommended  to  choose  "  dele 
gates  to  meet  in  Convention  for  the  purpose  of  making  such 
alterations  in  the  Constitution"  as  they  might  think  proper, 
"  without  first  having  taken  the  sense  of  the  people,  whether 
such  a  Convention,  for  such  a  general  and  unlimited  revisal  and 
alteration  of  the  Constitution,"  was,  "  in  their  judgment,  neces 
sary  and  expedient."  Admitting  as  undoubted  and  as  inde 
feasible  the  right  of  the  people  at  all  times  to  alter  their  Consti 
tution,  as  to  them  should  seem  meet,  the  Council  expressed 
great  doubt  whether  it  belonged  "to  the  ordinary  legislature, 
chosen  only  to  make  laws,  in  pursuance  of  the  provisions  of  the 
existing  Constitution,  to  call  a  Convention,  in  the  first  instance, 
to  revise,  alter,  and  perhaps  remodel  the  whole  fabric  of  the  gov 
ernment,  and  before  they  have  received  a  legitimate  and  full 
expression  of  the  will  of  the  people  that  such  changes  should  be 
made."  They  remark,  with  great  justice,  that  "  the  Constitu 
tion  is  the  will  of  the  people,  expressed  in  their  original  charac- 


490  CONSTITUTIONAL   PROVISIONS 

ter,  and  intended  for  the  permanent  protection  and  happiness  of 
them  and  their  posterity;  and,"  they  add,  "it  is  perfectly  con 
sonant  to  the  republican  theory,  and  to  the  declared  sense  and 
practice  of  this  country,  that  it  cannot  be  altered  or  changed  in 
any  degree,  without  the  expression  of  the  same  original  will." 
The  Council  conclude  by  showing  that  in  many  of  the  Consti 
tutions  thus  far  framed  in  the  leading  States  of  the  Union,  it 
has  been  explicitly  provided  that  no  Convention  should  be 
called  but  by  the  concurrence  of  the  people,  expressed  at  an 
election  at  which  the  question  of  calling  one  should  have  been 
distinctly  presented.1 

§  535.  The  wisdom  of  this  decision  it  is  impossible  to  doubt. 
How  far  it  conforms  to  the  constitutional  practice  of  the  coun 
try  may  be  inferred  from  an  examination  of  precedents,  to 
which  I  now  pass. 

The  provisions  of  our  Constitutions  relating  to  this  subject 
are  of  three  varieties  :  first,  such  as  look  to  a  periodical  expres 
sion  of  the  sense  of  the  people  on  the  question  of  calling  a  Con 
vention  ;  secondly,  such  as  look  to  a  vote  of  the  people  on  the 
question,  whenever  the  legislature  should  have  declared  it  ad 
visable  that  a  Convention  should  be  called ;  and,  thirdly,  such 
as  restrict  the  calling  of  a  Convention  within  defined  bounds 
and  in  negative  terms  —  all  three  varieties,  however,  with  two 
exceptions,  to  be  hereafter  noted,  vesting  the  power  to  call  only 
in  the  legislature. 

1.  Of  the  first  variety,  the  earliest  instance  is  presented  by  the 
Pennsylvania  Constitution  of  1776,  which  provided  for  the  call 
of  a  Convention  every  seventh  year  after  its  adoption.  New 
Hampshire,  in  her  Constitution  of  1792,  adopted  the  same  term, 

1  For  the  whole  of  this  very  valuable  document,  see  Appendix  B. 

Another  check  upon  the  calling  of  Conventions,  mentioned  by  Mr.  Madison, 
involves  the  concurrent  action  of  any  two  of  the  three  departments  of  the  gov 
ernment  ;  but,  as  it  has  never  been  employed,  I  have  not  enumerated  it  in  the 
text.  It  is  thus  described  by  him :  —  "  Another  plan  has  been  thought  of,  which 
might  perhaps  succeed  better,  and  would  at  the  same  time  be  a  safeguard  to  the 
equilibrium  of  the  constitutional  departments  of  the  government ;  that  is,  that  a 
majority  of  any  two  of  the  three  departments  should  have  authority  to  call  a 
plenipotentiary  Convention,  whenever  they  may  think  their  constitutional  pow 
ers  have  been  violated  by  the  other  department,  or  that  any  material  part  of  the 
Constitution  needs  amendment."  —  Letter  to  John  Brown  (of  Kentucky),  dated 
Aug.  23,  1785,  Madison's  Works,  Vol.  I.  p.  177. 


FOR  CALLING  CONVENTIONS.  491 

and  has  preserved  it  in  all  her  subsequent  revisions.  The  same 
plan,  but  with  a  different  period,  has  been  adopted  by  other 
States.  Thus,  the  Wisconsin  Constitution  of  1846  authorized 
a  vote  of  the  people  on  the  question  every  tenth  year,  and  that 
of  Indiana,  of  1816,  every  twelfth  year.  In  many  cases  a  par 
ticular  year  has  been  named  in  which  a  vote  of  the  people  was 
to  be  taken.  The  Georgia  Constitution  of  1789  authorized 
such  a  vote  in  1794  ;  that  of  Massachusetts  of  1780,  in  1795 ; 
and  that  of  Kentucky  of  1792,  at  the  two  successive  elections 
in  1797  and  1798.  The  New  York  Constitution  of  1846  pro 
vided  for  taking  the  sense  of  the  people  in  1866  and  every  twen 
tieth  year  thereafter;  that  of  Vermont  of  1777,  in  1785  and 
every  seventh  year  thereafter ;  that  of  Massachusetts  of  1853,  in 
1873  and  every  twentieth  year  thereafter  ;  that  of  Ohio  of  1851, 
in  1871,  and  every  twentieth  year  thereafter ; 1  that  of  Michigan 
of  1850,  in  1866,  and  every  sixteenth  year  thereafter ;  and  that 
of  Iowa  of  1857,  in  1870  and  every  tenth  year  thereafter.  The 
last  two  Constitutions  added  a  provision  that  a  vote  of  the  peo 
ple  upon  the  question  of  calling  a  Convention  might  also  be 
taken  at  such  other  times  as  the  legislature  might  by  law  pre 
scribe.  The  Maryland  Constitution  of  1851  contained  a  pro 
vision  similar  to  those  last  named,  making  it  the  duty  of  the 
legislature,  at  its  first  session  immediately  succeeding  the  re 
turns  of  every  census  of  the  United  States  thereafter  taken,  to 
pass  a  law  for  ascertaining  the  sense  of  the  people  in  regard  to 
calling  a  Convention  for  altering  the  Constitution.  A  novel 
provision  for  calling  a  Convention  was  made  in  the  Massachu 
setts  Constitution  of  1853,  beside  the  one  described  above.  Its 
terms  were,  that  whenever  towns  or  cities  containing  not  less 
than  one-third  of  the  qualified  voters  of  the  Commonwealth 
should,  at  any  meeting  for  the  election  of  State  officers,  request 
that  a  Convention  be  called  to  revise  the  Constitution,  it  should 
be  the  duty  of  the  legislature,  at  its  next  session,  to  pass  an  Act 
for  the  calling  of  the  same,  and  submit  the  question  to  the 
qualified  voters  of  the  Commonwealth,  whether  a  Convention 
should  be  called  accordingly,  saving,  however,  the  power  of  the 

l  The  adoption  of  the  term  of  twenty  years  was  probably  based  on  the  cal 
culation  of  Mr.  Jefferson,  that  the  people  of  a  State,  as  a  body,  was  wholly  re- 
•     newed  once  in  about  twenty  years.     See  his  Letter  of  July  12, 1816,  to  Samuel 
Kercheval,  Jefferson's  Works,  Vol.  VII.  pp.  9-17. 


492  CONSTITUTIONAL   PROVISIONS 

legislature  to  take  action  for  calling  a  Convention  without  such 
request,  as  before  practised  in  the  Commonwealth. 

§  536.  2.  The  second  variety,  namely,  that  which  looks  to  a 
vote  of  the  people  upon  the  question  of  calling  a  Convention, 
whenever  such  a  step  should  seem  to  the  legislature  to  be  ad 
visable,  is  exemplified  in  nearly  all  the  other  Constitutions 
which  contain  any  provision  on  the  subject.  In  this  class  of 
cases,  it  is  obvious  that  the  facility  with  which  changes  in  the 
organic  law  can  be  effected  is  lessened.  The  legislature  must 
first  favor  those  changes ;  and  that  body,  elected  under  the  ex 
isting  Constitution,  may  be  opposed  to  any  change.  At  all 
events,  the  legislature  is  a  less  numerous  body  than  the  electors, 
more  liable  to  be  swayed  by  passion  or  interest,  and  farther  re 
moved  from  the  original  source  of  all  authority,  the  sovereign 
political  body.  But,  on  the  other  hand,  the  legislature  is  the 
creature  of  the  electors.  It  may  delay,  but,  as  our  Constitutions 
now  regulate  the  suffrage,  it  cannot  ordinarily  long  prevent  such 
amendments  as  public  opinion  should  have  pronounced  desir 
able.  In  a  majority  of  cases,  the  provisions  in  question  are 
to  the  effect  that,  whenever  two-thirds  of  each  house,1  or  of 
all  the  members  elected  to  each  house,2  shall  concur  in  the 
expediency  of  calling  a  Convention  to  revise  the  Constitution, 
they  shall  cause  a  vote  of  the  people  to  be  taken  on  the  subject 
at  the  next  general  election ;  and,  if  a  majority  of  the  people 
should  vote  in  favor  of  such  Convention,  then  the  legislature,  at 
its  next  session,  shall  call  one.  In  a  few  cases,  the  provision 
has  been  for  a  vote  of  the  people  on  the  recommendation  of 
"  two-thirds  of  each  house  of  the  General  Assembly,"  which  has 
been  held  to  mean  two-thirds  of  a  quorum  of  each  house.3  In 
several  instances  only  a  majority  vote  has  been  required  in  the 
legislature,  sometimes  of  the  two  houses,4  sometimes  of  all  the 

1  This  was  the  provision  in  the  following  Constitutions:  —  Florida,   1839; 
California,   1849  ;   and  Minnesota,  1857.     A  similar  provision  appears  in  the 
Federal  Constitution  of  1787. 

2  This  provision  appeared  in  the  following  Constitutions :  —  North  Carolina, 
1835  ;  Ohio,  1851 ;  Illinois,  1847  and  1862;  and  Kansas,  1857  and  1859. 

3  State  v.  M'Bride,  4  Mo.  R.  303 ;  Green  v.  Waller,  32  Miss.  R.  (3  George) 
650.     The  Constitutions  in  which  this  phraseology  is  used  are  those  of  Tennes 
see,  1796,  and  Ohio,  1802. 

4  Constitutions  of  Wisconsin,  1848;  and  West  Virginia,  1863. 


FOB  CALLING   CONVENTIONS.  493 

members  elected  to  both  houses,1  and  sometimes,  inferentially, 
a  majority  only  of  a  quorum,  —  the  phraseology  being  simply, 
that  "  whenever  the  General  Assembly  shall  deem  a  Convention 
desirable,"  &c.2 

§  537.  3.  The  cases  comprised  in  the  third  variety  are  less 
numerous,  namely,  those  in  which  restrictions  have  been  im 
posed  upon  the  call  of  Conventions,  in  negative  terms.  In 
most  of  the  cases  referred  to,  the  restriction  relates  to  the  call 
ing  of  Conventions  without  the  concurrence  of  a  vote  of  the 
people,  or  withouf  a  specified  majority  in  the  General  Assembly. 
Thus,  in  the  Constitutions  of  Delaware  of  1792  and  1831,  it 
was  provided,  that  no  Convention  should  be  called  but  by  the 
concurrence  of  the  people,  to  be  expressed,  as  the  context  shows, 
by  a  vote  of  the  electors  at  an  election  held  for  that  purpose. 
The  North  Carolina  Constitution  of  1835,  and  that  of  Florida 
of  1839,  provided,  that  no  Convention  should  be  called  unless 
by  the  concurrence  of  two-thirds  of  all  the  members  elected  to 
each  house  of  the  General  Assembly.  The  first  Constitution 
of  Kentucky  of  1792  authorized  the  call  of  a  Convention,  pro 
vided  the  people  should  vote  in  favor  of  it,  at  the  elections  to  be 
held  in  the  years  1797  and  1798,  and  then  added  the  restriction, 
that  if  it  should  appear,  upon  the  ballot  of  either  year,  that  a 
majority  of  the  citizens  voting  for  representatives  was  not  in 
favor  of  a  Convention  being  called,  it  should  not  be  done,  until 
two-thirds  of  both  branches  of  the  legislature  should  deem  it 'ex 
pedient.  The  Constitution  of  West  Virginia,  framed  in  1863, 
surpasses  all  others  in  the  number  and  rigor  of  its  restrictive 
clauses.  No  Convention  is  to  be  called,  "  having  power  to 
alter  the  Constitution  of  the  State,"  unless  in  pursuance  of  a 
law  to  take  the  sense  of  the  people  on  the  question  of  calling  a 
Convention.  No  members  of  a  Convention  are  to  be  elected 
until  one  month  after  the  result  of  the  poll  shall  have  been  as 
certained  and  published ;  all  Acts  and  Ordinances  of  any  such 
Convention  are  to  be  submitted  to  the  voters  of  the  State  for 
ratification  or  rejection,  and  to  have  no  validity  whatever  un 
til  they  are  ratified;  and  in  no  event  are  they,  by  any  shift 
or  device,  to  be  made  to  have  any  retrospective  operation  or 

1  Constitutions  of  Kentucky,  1799  and  1849;  and  Louisiana,  1812. 

2  Constitutions  of  Iowa,  1846  ;  and  Delaware,  1831.      See  State  v.  M'Bride, 
4  Mo.  R.  303 ;  Green  v.  Waller,  32  Miss.  R.  (3  George)  650. 


494  MODE  OF  AMENDING   CONSTITUTIONS 

effect.  A  special  interest  attaches  to  the  cases  comprised  in  this 
variety,  on  account  of  an  important  constitutional  question, 
considered  elsewhere,  to  which  they  give  rise,  namely,  Whether, 
under  those  instruments,  amendments  can  be  effected  in  any 
mode,  or  by  any  instrumentality,  not  pointed  out  by  them  ? l 

§  538.  (b.)  The  mode  of  effecting  amendments  to  a  Consti 
tution  through  the  agency  of  the  legislature,  without  a  Conven 
tion,  would  seem  to  be  the  most  natural,  because  the  most 
simple  one.  Our  fathers,  as  we  have  shown,  were  familiar  with 
its  use  in  England.  The  peculiar  nature  of  our  system,  how 
ever,  made  the  adoption  of  the  English  mode,  without  mate 
rial  modifications,  inadvisable,  for  by  the  latter  constitutional 
changes  are,  as  in  case  of  ordinary  legislation,  the  work  of  King, 
Lords,  arid  Commons,  acting  in  conjunction.  In  America,  how 
ever,  fundamental  legislation,  even  when  carried  on  by  our  Gen 
eral  Assemblies,  is  conducted  in  a  manner  very  different  from 
ordinary  legislation.  As,  in  calling  Conventions,  the  legislature 
acts  under  checks  unknown  to  it  when  exercising  its  usual  func 
tion  ;  so  here,  the  restrictions  upon  its  action  are  so  numerous 
and  important,  and  the  departures  from  the  processes  of  ordi 
nary  legislation  so  wide,  that  it  has  been  made  a  question 
whether,  in  proposing  amendments  to  the  organic  law,  the  legis 
lature  is  engaged  in  an  act  of  legislation  at  all,  —  a  question 
which  it  will  become  our  duty  in  due  time  to  consider. 

§  539.  Though  this  mode,  under  proper  restrictions  and  in 
cases  to  which  it  is  adapted,  may  be  followed  without  danger, 
yet  it  is  subject  to  obvious  objections.  The  legislature  is  a  body 
chosen  for  temporary  purposes.  It  is  a  mirror  of  political  pas 
sions  and  interests,  and,  with  the  best  intentions,  cannot  be 
expected  to  be  free  from  bias,  even  in  questions  of  the  highest 
moment.  It  is  composed,  moreover,  in  general,  of  politicians 
rather  than  of  statesmen.  Indeed,  if  a  man  shows  himself,  by 
culture  and  the  breadth  of  his  views,  to  be  fitted  for  the  highest 
trusts,  it  is  nearly  certain  that  he  will  not  be  found  in  the  legis 
lature,  but  be  left  in  obscurity  at  home.  But,  when  a  Conven 
tion  is  called,  it  is  sometimes  possible  to  secure  the  return  of 
such  men.  It  is  not  necessarily  because  such  a  body  is  recog 
nized  to  be,  as  it  is,  the  most  important  ever  assembled  in  a 
State,  but  because  the  measures  it  is  expected  to  mature  bear 
1  See  post,  §§564-574. 


THROUGH   THE   ACTION   OF   THE  LEGISLATURE.  495 

less  directly  on  the  interests  of  parties  or  of  individuals.  Party 
management,  therefore,  is  not  usually  so  much  directed  to  the 
seeking  of  control  of  a  Convention  as  of  a  legislature.  Besides, 
the  proper  function  of  the  latter  body,  that  of  municipal  legis 
lation,  being  one  of  the  highest  vested  by  the  sovereign  in  any 
governmental  agency,  it  cannot  but  be  inexpedient,  on  a  general 
view,  that  there  should  be  added  to  it  that  of  organic  legislation, 
requiring  different  and  higher  gifts,  and  wider  experience  and 
study,  thus  threatening  to  unsettle  the  balance  of  the  Constitu 
tion.1 

§  540.  With  proper  safeguards,  and  under  adequate  checks, 
however,  a  legislature,  as  we  have  said,  may  be  invested  with  the 
power  of  fundamental  legislation  without  endangering  the  safety 
of  the  state.  In  point  of  convenience,  such  an  arrangement 
possesses  many  claims  to  acceptance.  The  calling  of  a  Conven 
tion  is  a  measure  attended  commonly  by  much  delay  and  ex 
pense,  and  is  often  compassed  by  very  great  difficulties.  Reforms 
would  often  be  foregone  rather  than  resort  to  means  so  incon 
venient.  The  amendments  to  our  Constitutions  are  very  com 
monly  of  no  great  extent;  a  doubt  has  arisen,  perhaps,  as  to 
the  construction  to  be  put  upon  a  particular  clause ;  a  change 
may  be  desired  in  the  qualifications  for  the  suffrage,  or  in  the 
basis  of  representation ;  a  branch  of  the  administration  is  found 
to  be  too  cumbrous  for  use;  or  a  new  distribution  among  the 
agencies  of  government  of  their  constitutional  powers  is  thought 
to  be  advisable  to  facilitate  the  transaction  of  business,  or  to 
render  public  operations  more  safe  or  more  economical.  For 
amendments  of  such  a  stamp,  separately  considered,  the  mode 
by  legislative  action  is  well  adapted ;  and  it  is  adapted  to  no 
other.  It  ought  to  be  confined,  in  my  judgment,  to  changes 
which  are  simple  or  formal,  and,  therefore,  of  comparatively 
small  importance.  For  a  general  revision  of  a  Constitution,  or 
even  for  single  propositions  involving  radical  changes  as  to  the 
policy  of  which  the  popular  mind  has  not  been  informed  by 
prior  discussion,  the  employment  of  this  mode  is  impracticable 
or  of  doubtful  expediency. 

The  checks  proper  to  be  applied  to  a  legislature,  acting  in  a 
conventional  capacity,  are  not  different  from  those  applied  where 

i  See  Hildreth's  Hist.  U.  S.,  Vol.  I.  2d  Series,  p.  231 ;  remarks  of  the  author 
upon  the  South  Carolina  Constitution  of  1790. 


496  MODE  OF  AMENDING   CONSTITUTIONS 

it  assumes  to  call  a  Convention.  They  consist  of  increased 
majorities,  of  repeated  votes,  and  of  publication  and  submission 
to  the  people.  In  many  cases,  as  we  shall  see,  all  of  these  de 
vices  for  preventing  hasty  action,  are  employed  simultaneously. 
When  measures  are  thus  initiated  deliberately,  in  a  right  spirit 
and  for  proper  ends,  the  conditions  of  safe  legislation  seem 
to  be  fulfilled. 

§  541.  Of  the  forty  odd  Constitutions  which  permit  amend 
ments  by  the  specific  mode,  —  that  is,  by  combined  legislative 
and  popular  action,  without  a  Convention,  —  eleven  contain 
substantially  the  following  provision,  copied  from  the  Missis 
sippi  Constitution  of  1832,  which,  in  that  particular,  was  doubt 
less  modelled  after  that  of  the  United  States.1 

"  Whenever  two-thirds  of  each  branch  of  the  legislature  shall 
deem  any  change,  alteration,  or  amendment  necessary  to  this 
Constitution,  such  proposed  change,  alteration,  or  amendment 
shall  be  read  and  passed  by  a  majority  of  two-thirds  of  each 
house  respectively,  on  each  day,  for  three  several  days.  Public 
notice  thereof  shall  then  be  given  by  the  Secretary  of  State,  at 
least  six  months  preceding  the  next  general  election,  at  which 
the  qualified  electors  shall  vote  directly  for  or  against  such 
change,  alteration,  or  amendment ;  and,  if  it  shall  appear  that 
a  majority  of  the  qualified  electors  voting  for  members  of  the 
legislature  shall  have  voted  for  the  proposed  change,  alteration, 
or  amendment,  then  it  shall  be  inserted  by  the  next  succeeding 
legislature  as  a  part  of  this  Constitution,  and  not  otherwise." 

There  are  minor  differences  in  the  several  Constitutions  of 
this  class.  Thus,  the  restrictive  clause  at  the  end  is  not  usually 
inserted.  The  other  points  of  difference  relate  to  the  majority 
of  the  legislature  required  to  recommend  a  change,  and  the 
length  of  the  notice  to  be  given.  Thus,  in  the  Constitutions  of 
Louisiana,  1845,  and  Ohio,  1851,  the  vote  required  was  three- 
fifths  of  the  members  elected  to  each  house ;  in  that  of  Louisi 
ana,  1864,  it  was  a  majority.  In  the  others  it  was  two-thirds. 
The  length  of  time  required  for  the  notice  to  the  people  was 
generally  three  instead  of  six  months.  That  of  Louisiana  of 
1864,  however,  required  only  thirty  days,  and  those  of  Michigan 

1  The  Constitutions  referred  to  are  the  following:  of  Mississippi,  1832; 
Maine,  1819:  Wisconsin,  1846  and  1848;  California,  1849;  Michigan,  1850; 
Louisiana,  1845,  1852,  and  1864;  Ohio,  1851 ;  and  Kansas,  1859. 


THROUGH  THE   ACTION  OF  THE  LEGISLATURE.  497 

of  1850,  and  of  Maine  of  1819,  no  notice  at  all.  In  the  Kansas 
Constitution  of  1859,  the  notice  of  three  months  was  required 
to  be  given  by  publication  in  at  least  one  newspaper  in  each 
county  in  the  State  where  a  newspaper  was  published. 

§  542.  Of  the  Constitutions  referred  to,  twenty-five  contained 
provisions  in  the  main  similar  to  the  following  taken  from  the 
Connecticut  Constitution  of  1818:  — 

"  Whenever  a  majority  of  the  House  of  Representatives  shall 
deem  it  necessary  to  alter  or  amend  this  Constitution,  they 
may  propose  such  alterations  or  amendments ;  which  proposed 
amendments  shall  be  continued  to  the  next  General  Assembly, 
and  be  published  with  the  laws  which  may  have  been  passed  at 
the  same  session ;  and  if  two-thirds  of  each  house  at  the  next 
session  shall  approve  the  amendments  proposed,  by  yeas  and 
nays,  said  amendments  shall,  by  the  Secretary,  be  transmitted 
to  the  town  clerk  in  each  town  in  this  State,  whose  duty  it  shall 
be  to  present  the  same  to  the  inhabitants  thereof,  for  their  con 
sideration,  at  a  town-meeting,  legally  warned  and  held  for  that 
purpose  ;  and,  if  it  shall  appear  in  a  manner  to  be  provided  by 
law,  that  a  majority  of  the  electors  present  at  such  meetings 
shall  have  approved  such  amendments,  the  same  shall  be  valid, 
to  all  intents  and  purposes,  as  a  part  of  this  Constitution." ] 

The  initiation  of  amendments  by  this  plan,  it  will  be  ob 
served,  is  confined  to  the  House  of  Representatives.  In  most 
of  the  Constitutions  of  this  class,  however,  the  right  originally 
to  propose  them  is  given  to  either  house  of  the  General  Assem 
bly,  or  simply  to  the  General  Assembly  ;  after  which,  if  they 
are  agreed  to  by  the  requisite  majority  of  each  house,  they  are 
referred  to  the  General  Assembly  next  to  be  elected,  and  pub 
lished,  &c.  In  several  instances  the  final  act  of  submission  to 
the  people  is  dispensed  with.2  As  in  the  class  last  noted,  there 
are  considerable  differences  in  respect  of  the  majorities  and  the 

1  The  Constitutions  embraced  in  this  class  are, — of  Maryland,  1776;  South 
Carolina,  1790;  Delaware,  1792  and  1831  ;  Georgia,  1798  ;  Connecticut,  1818  ; 
Alabama,  1819;  Missouri,  1820;  Massachusetts,  1821  and  1853;   New  York, 
1821   and  1846;   Michigan,  1835;   Tennessee,  1834;  Arkansas,  1836;  North 
Carolina,  1835;  Pennsylvania,  1838;  New  Jersey,  1844;  Rhode  Island,  1842; 
Texas,    1845;   Illinois,  1847  and  1862;   Iowa  and  Oregon,  1857;   and  West 
Virginia,  1863. 

2  As  in   that  of  Maryland,   1776;  South  Carolina,    1790;  Georgia,  1798; 
Delaware,  1792;  and  Florida,  1839. 

32 


498  MODE   OF   AMENDING   CONSTITUTIONS 

length  of  notice  required  in  the  various  cases,  and  in  other 
minor  particulars.  In  eight  of  the  cases,  both  votes  of  the  two 
houses  —  that  preceding  and  that  following  the  publication  of 
the  proposed  amendments  —  were  to  be  of  two-thirds  of  each 
house,1  and  in  eight  they  were  to  be  of  a  majority  of  the  same.2 
In  two  cases  the  votes  were  to  be,  the  first  of  two-thirds,  and 
the  second  of  three-fourths ; 3  in  two  they  were  to  be,  the  first 
of  a  majority,  and  the  second  of  two-thirds;4  in  two,  these  last 
fractions  were  reversed  ; 5  and  in  one,  the  first  was  to  be  of 
three-fifths  and  the  second  of  two-thirds.6  In  two  cases,  on  the 
votes  in  the  legislature,  there  were  to  be  a  majority  of  the  Sen 
ate  and  two-thirds  of  the  House.7 

On  the  popular  vote  to  ratify  the  action  of  the  legislature, 
a  majority  was  required  in  all  the  cases  but  that  of  Rhode 
Island,  1842,  which  made  a  vote  of  three-fifths  of  the  people 
necessary. 

§  543.  There  are  a  few  cases  which  are  not  reducible  to  any 
rule,  that  it  may  be  useful  to  note  separately.  The  first  of 
these  is  that  of  the  Delaware  Constitution  of  1776,  by  Section 
XXX.  of  which  it  was  provided  as  follows :  — 

"  No  article  of  the  Declaration  of  Rights  and  fundamental 
rules  of  this  State,  agreed  to  by  this  Convention,  nor  the  first, 
second,  fifth  (except  that  part  thereof  that  relates  to  the  right  of 
suffrage),  twenty-sixth,  and  twenty-ninth  articles  of  this  Consti 
tution  ought  ever  to  be  violated,  on  any  pretence  whatever.  No 
other  part  of  this  Constitution  shall  be  altered,  changed,  or 
diminished,  without  the  consent  of  five  parts  in  seven  of  the 
Assembly,  and  seven  members  of  the  Legislative  Council."  8 

Articles  of   Confederation    provided,  Article  XIIL,  that 

1  South  Carolina,  1790;   Georgia,  1798;  Alabama,  1819;    Missouri,  1820; 
Michigan,  1835;  Arkansas,  1836;  Florida,  1839;  and  Texas,  1845. 

2  New  Jersey,  1844;  Pennsylvania,  1838;  New  York,  1846;  Rhode  Island, 
1842;  Indiana,  1850;  Iowa  and  Oregon,  1857;  and  West  Virginia,  1863. 

3  Delaware,  1792  and  1831. 

4  New  York,  1821 ;  Tennessee,  1834. 

5  Illinois,  1847  and  1862. 

6  North  Carolina,  1835. 

7  Massachusetts,  1821  and  1853. 

8  The  Legislative  Council  consisted  of  nine  members,  so  that  five-sevenths 
of  the  Assembly  and  seven -ninths  of  the  Council  were  necessary  to  amend  the 
.Jonstitution. 


THROUGH  THE  ACTION  OF  THE  LEGISLATURE.       499 

no  alteration  should  at  any  time  be  made  in  any  of  said  articles, 
"  unless  such  alteration  be  agreed  to  in  a  Congress  of  the 
United  States,  and  be  afterwards  confirmed  by  the  legislature 
of  every  State." 

The  Federal  Constitution  provided  still  a  different  mode, 
though  it  bore  in  general  a  strong  resemblance  to  the  class  first 
above  mentioned,  save  in  the  mode  of  ratification  by  the  people. 
It  was  as  follows  :  — 

"  Congress,  whenever  two-thirds  of  both  houses  shall  deem  it 
necessary,  shall  propose  amendments  to  this  Constitution  .... 
which  ....  shall  be  valid  to  all  intents  and  purposes  as  parts 
of  this  Constitution,  when  ratified  by  the  legislatures  of  three- 
fourths  of  the  several  States,  or  by  Conventions  in  three-fourths 
thereof,  as  the  one  or  the  other  mode  of  ratification  may  be  pro 
posed  by  Congress."  l 

1  In  connection  with  this  clause  of  the  Federal  Constitution,  it  may  not  be 
out  of  place  to  consider  the  animadversions  of  a  late  writer  respecting  the  mode 
thus  provided  for  effecting  amendments  to  that  instrument  as  contrasted  with 
that  pursued  under  the  English  Constitution.  I  refer  to  Fisher,  in  his  interest 
ing  work,  entitled  Trial  of  the  Constitution.  Justly  admiring  the  English  Con 
stitution,  and  naturally  entertaining  great  solicitude  for  the  public  safety  during 
the  perilous  times  through  which  we  were  lately  passing,  that  writer  has  pro 
nounced  the  Constitution  of  the  United  States  to  be  in  comparison  with  it,  inade 
quate  to  a  crisis  like  that  of  1861-5,  in  that  it  does  not  contain  a  practicable 
provision  for  amendments.  In  his  opinion,  had  the  United  States  been  in  a 
condition  to  settle  the  vexed  question  of  slavery  through  an  amendment  to  its 
Constitution,  effected  by  the  direct  action  of  Congress  in  its  ordinary  capacity, 
the  late  desolating  war  would  not  have  fallen  upon  us.  The  result  of  his  dis 
cussion  is,  an  earnest  recommendation  of  the  English  mode  of  fundamental 
legislation  by  mere  parliamentary  majorities,  followed  up  by  the  formality  of 
the  executive  sanction. 

This  view  of  the  subject  I  regard  as  a  mistaken  one.  Although  it  has  been 
stated  in  general  terms  to  be  one  of  the  functions  of  the  English  Parliament  to 
enact  amendments  to  the  Constitution  of  the  realm,  yet  that  remark  is  but  for 
mally  and  superficially  true,  the  function  of  that  body  being  rather  to  register 
than  to  enact  them.  The  fact  is,  that  every  considerable  change  in  the  English 
Constitution  from  Magna  Charta  down  to  our  day,  has  been  achieved  by  conflict 
outside  the  walls  of  Parliament — often  by  the  blood  of  the  English  people. 
When  victory  has  declared  itself,  the  principle  established  by  it  has  by  Parliament 
been  written  down  as  a  part  of  the  fundamental  code  —  the  three  estates  of  the 
realm  as  it  were  following  in  the  train  of  the  national  armies,  and  gathering  up 
and  depositing  among  the  treasures  of  the  kingdom  the  fruits  of  their  conflicts. 
Never,  either  in  England  or  elsewhere,  do  the  peaceful  labors  of  the  legislator 
produce  changes  that  touch  radically  the  passions  or  the  interests  of  men.  Force 


500  MODE   ADOPTED   IN  PENNSYLVANIA   AND   VERMONT. 

§  544.  It  has  already  been  observed  that,  generally,  whichever 
mode  of  amending  Constitutions  is  adopted,  the  intervention  of 
the  legislature  is  required.  It  either  proposes  to  the  people  the 
calling  of  a  Convention,  and,  if  they  vote  in  favor  of  it,  pro 
vides  for  its  call;  or  it  recommends  specific  amendments  to 
be  passed  upon  by  the  people  in  some  one  of  the  modes  re 
ferred  to. 

To  this  rule  there  are  exceptions,  however,  in  the  cases  of  the 
Pennsylvania  Constitution  of  1776,  and  of  the  several  Constitu 
tions  of  Vermont.  In  these  cases  the  legislatures  were  allowed 
no  participation  in  the  business  of  concocting  amendments,  but 
they  were  effected  by  Conventions,  called  by  a  body  styled  the 
Council  of  Censors,  which  alone  had  power  to  propose  them  — 
a  device  which  experience  has  shown  to  be  more  ingenious 
than  useful.  Among  the  powers  of  the  Council,  which  was  to 
meet  every  seventh  year,  was  that  of  calling  a  Convention, 
to  meet  within  two  years  after  their  sitting,  if  there  should 
appear  to  them  an  absolute  necessity  of  amending  any  Article 
of  the  Constitution  which  might  be  defective,  explaining  such 
as  might  be  thought  not  clearly  expressed,  and  adding  such  as 
were  necessary  for  the  preservation  of  the  rights  of  the  people ; 
but  it  was  wisely  further  provided,  that  the  Articles  to  be 
amended,  together  with  the  amendments  proposed,  and  such 
Articles  as  were  proposed  to  be  added  or  abolished,  should  be 
promulgated,  at  least  six  months  before  the  day  appointed  for 
the  election  of  such  Convention,  for  the  previous  consideration 

alone  works  out  such  changes.  Accordingly,  had  the  American  Constitution 
contained  the  provision  so  lauded  by  Mr.  Fisher,  the  terrible  war  through  which 
we  have  just  passed  would  not  have  been  prevented.  So  soon  as  party  tactics 
should  have  failed  to  guard  our  Constitution  against  amendments  in  the  interest 
of  freedom,  by  filling  Congress  and  the  high  judicial  tribunals  with  the  devotees 
of  slavery,  the  latter  would,  precisely  as  they  have  now  done,  have  appealed  to 
arms.  To  men  bent  upon  accomplishing  a  purpose,  a  pretext  alone  is  necessary. 
Had  our  Constitution  distinctly  permitted  Congress  to  ordain  amendments  to  the 
fundamental  code,  the  range  within  which  to  seek  a  pretext  for  revolution  would 
hardly  have  been  lessened.  It  is  only  formal  and  unimportant  amendments  that 
can  be  thus  carried  through,  by  the  peaceful  action  of  the  majority  —  amend 
ments  of  such  a  stamp  that  they  commend  themselves  as  needful  or  as  proper  to 
all  candid  minds  when  first  presented,  and  so  appearing  are  readily  acquiesced 
in,  because  of  slight  importance  —  not  such  as  are  vital  to  powerful  interests, 
against  which  they  are  aimed,  or  which,  at  least,  they  will  most  injuriously 
affect. 


MODE   PROPOSED   IN   MASSACHUSETTS   IN   1853.  501 

of  the  people,  that  they  might  have  an  opportunity  of  instructing 
their  delegates  on  the  subject. 

This  plan,  which  seems  excellent,  was  not  found  to  work  well 
in  Pennsylvania ;  two  stormy  sessions  of  the  Council  resulting 
in  a  hopeless  disagreement,  after  which  it  never  met  again,  and 
was  abolished  in  1790. 

§  545.  From  Pennsylvania,  in  the  mean  time,  in  1777,  this 
peculiar  provision  had  been  borrowed  by  Vermont,  by  which  it 
has  been  retained  until  this  day.  Although,  at  an  early  day, 
this  Council  did  an  essential  service  to  the  cause  of  constitu 
tional  government  in  Vermont,  by  the  faithfulness  with  which 
it  discharged  certain  censorial  duties  committed  to  it  by  the 
Constitution,  and  has  been  instrumental  in  initiating  some  very 
important  constitutional  changes,  still,  on  the  whole,  it  cannot 
be  regarded  as  a  success.  Of  late  years,  it  has  been  found  to 
be  too  inflexible,  serving  rather  as  a  shield  to  protect,  than  as  a 
sword  to  cut  down,  abuses,  and  will  hence,  probably,  ere  long, 
give  place  to  some  scheme  by  which  the  public  will  can  be 
more  certainly  reflected.  It  is  doubtful,  moreover,  whether  the 
election,  once  in  seven  years,  of  a  Council  for  the  purpose,  among 
others,  of  proposing  changes  in  the  Constitution,  if  deemed  ab 
solutely  necessary,  is  not  practically  to  hold  out  inducements  to 
recommend  changes  whether  really  necessary  or  not.  If  no  sub 
stantial  reform  is  demanded  by  the  people,  a  desire  to  magnify 
their  office  is  likely  to  lead  the  Council  to  propose  amendments 
of  a  trivial  and  unimportant  character,  lest  there  should  seem 
to  be  in  them  a  want  either  of  critical  acumen,  or  of  zeal  for  the 
public  good. 

§  546.  With  these  exceptions,  no  Constitution  has  ever  con 
templated  amendments  except  through  the  prior  ministry  of  the 
legislature.  In  the  Massachusetts  Convention  of  1853,  Mr. 
Hallett,  indeed,  proposed  a  plan  not  subject  to  the  objections 
existing  to  that  of  a  Council  of  Censors,  and  which,  nevertheless, 
avoided  the  necessity  of  legislative  intervention  in  the  matter  of 
calling  Conventions.  His  plan  was  to  authorize  the  qualified 
electors,  in  the  year  1873,  and  every  twentieth  year  thereafter, 
at  the  general  election  then  to  be  held,  to  vote  on  this  question  : 
"  Shall  there  be  a  Convention  to  revise  the  Constitution,  in  con 
formity  to  the  provisions  of  the  Act  of  1852,  Chapter  188,  relat 
ing  to  the  calling  a  Convention  of  delegates  of  the  people  for 


502         NATURE  OF  THE  ACT  OF  A  LEGISLATURE 

the  purpose  of  revising  the  Constitution  ?  "  If  it  should  appear, 
by  the  returns  made,  that  a  majority  of  the  qualified  voters 
throughout  the  State,  who  should  assemble  and  vote  thereon, 
were  in  favor  of  such  revision,  the  same  should  be  taken  to  be 
the  will  of  the  people  of  the  Commonwealth,  that  a  Convention 
should  meet  accordingly;  and  thereupon  delegates  should  be 
chosen,  on  the  first  Monday  of  March  next  succeeding,  and  such 
delegates  should  meet  in  Convention  in  the  State  House,  on  the 
first  Wednesday  of  May  succeeding,  in  the  same  manner,  and 
with  the  same  authority,  as  was  provided  in  the  second,  third, 
and  fourth  sections  of  that  Act.1 

Though  doubtless  possessed  of  some  objectionable  features, 
especially  in  regard  to  Conventions  at  fixed  periods,  and  to  the 
character  of  the  Act  referred  to,  the  principle  of  this  provision 
seems  in  some  respects  to  be  salutary.  It  certainly  would  obvi 
ate  the  difficulties  experienced  in  many  of  the  States  in  securing 
the  consent  of  the  legislature  to  the  call  of  a  Convention,  to 
lessen,  perhaps,  their  power  and  emoluments.  One  material 
question  relating  to  it,  however,  it  is  now  too  early  to  answer 
definitively ;  and  that  is,  whether  or  not  such  a  provision  unduly 
facilitates  the  alteration  of  the  Constitution.  For  want  of  some 
such  clause,  the  State  of  Rhode  Island  was,  in  1842,  thrown 
into  a  revolution,  in  which,  as  is  not  unusual,  the  law  was  on 
one  side,  and  substantial  justice  on  the  other.  On  the  other 
hand,  it  is  possible,  that  had  the  States  lately  in  rebellion  against 
the  Union,  contained  the  provision  offered  by  Mr.  Hallett,  and 
left  no  power  in  the  legislatures  to  meddle  with  Constitutional 
changes  at  all,  the  inauguration  of  their  revolution  would  have 
been  prevented.  To  the  leaders  of  the  revolt,  the  alternatives 
would  have  been  distinctly  presented,  either  to  wait  on  the  move 
ments  of  the  electors  in  the  several  States,  or  openly  to  violate 
the  Constitution  —  neither  of  which  would  have  favored  the 
secession  scheme.  But,  as  we  have  seen,  it  is,  perhaps,  now  too 
early  to  pronounce  upon  a  question  which  can  be  determined 
only  by  long  constitutional  experience. 

§  547.  It  is  a  matter  of  interest  now  to  ascertain,  first,  the 
nature  of  the  participation  of  a  legislature  in  the  work  of  amend 
ing  a  Constitution  —  whether  the  act  it  performs  is  an  act  of 
legislation  or  a  special  ministerial  act.  finding  its  analogies  in 
l  Deb.  Mass.  Conv.  1853,  Vol.  III.  p.  118. 


WHEN   IT   PARTICIPATES   IN   AMENDING   A   CONSTITUTION.      503 

those  of  a  Convention,  which,  as  we  have  seen,  are  mere  recom 
mendations  addressed  to  a  body  above  and  beyond  it,  which 
alone  enacts  them  into  laws  ;  and,  secondly,  when  that  body 
recommends  amendments  to  a  Constitution,  the  extent  of  its 
power  in  that  particular. 

I.  In  relation  to  the  first  subject  of  inquiry,  there  will  be  found, 
I  am  confident,  upon  a  careful  survey  of  the  whole  field,  two 
distinct  cases :  first,  that  in  which  legislatures  intervene  to  call 
Conventions,  or  to  require  the  people  to  vote  upon  the  question 
of  calling  Conventions,  or  upon  amendments  which  legislatures 
submit  to  them  ;  and,  secondly,  that  in  which  legislatures  merely, 
by  resolution,  declare  the  adoption  of  specific  amendments  to 
be  expedient,  as  a  preliminary  step  towards  submitting  them  to 
a  vote  of  the  people.  In  the  first  case,  their  action  is  believed 
to  be  strictly  legislative  ;  in  the  second,  to  be  merely  ministerial. 
These  will  be  considered  in  their  order. 

In  every  case  in  which  a  legislature  intervenes  in  the  business 
of  fundamental  legislation,  it  does  so  by  some  vote  or  resolu 
tion  ;  and  to  determine  whether  or  not,  in  so  doing,  it  performs 
an  act  of  legislation,  the  readiest  mode  is  to  examine  the  result 
of  its  deliberations  in  detail.  If  it  have  the  characteristics  of  a 
law,  if  it  appear  to  have  been  passed  by  the  law-making  power 
within  the  scope  of  its  authority  as  such,  and  to  furnish  a  rule 
of  action  binding  upon  individuals,  it  must  be  classed  with  acts 
of  legislation,  whatever  fine-spun  theories  may  teach  to  the  con 
trary. 

It  has  been  seen  that  our  Constitutions  usually  provide  for  the 
call  of  Conventions  by  the  legislature,  either  at  their  own  dis 
cretion,  or  upon  the  expressed  desire  of  the  people  voting  on 
the  question  at  some  fixed  time,  or  when  requested  so  to  do  by 
the  legislature.  The  essence  of  the  provisions,  however,  is,  that 
the  legislature,  when  moved  thereto  by  an  evident  expediency,  or 
by  the  public  voice  constitutionally  expressed,  shall  call  a  Con 
vention.  This  course  has  been  universally  followed,  and  the 
call  has  commonly  been  made  in  very  nearly  the  same  terms. 
It  generally  provides  for  an  election  on  a  given  day,  to  choose 
delegates  for  a  Convention  ;  it  prescribes  the  duty  of  the  dele 
gates,  namely,  to  revise  the  Constitution,  sometimes  descending 
to  particulars,  as,  to  amend  that  part  of  it  relating  to  the  basis 
of  representation,  or  to  the  appointment  and  tenure  of  judicial 


504  NATURE   OF   THE   ACT    OF   A   LEGISLATURE 

offices  ;  to  determine  the  construction  of  a  particular  clause,  and 
the  like  ;  it  fixes  the  time  and  place  of  assembling  ;  imposes  lim 
itations  and  restrictions  upon  its  powers  ;  ascertains  the  pay  of 
its  officers  and  members ;  and  prescribes  the  disposition  to  be 
made  by  the  Convention  of  the  fruit  of  its  deliberations,  as, 
that  it  shall  be  submitted  to  the  people,  for  ratification  or  rejec 
tion  ;  that  a  copy  of  it  shall  be  lodged  with  the  Secretary  of  the 
Commonwealth,  or  be  recorded  in  his  office.  Connected  with 
the  duties  presented,  or  the  limitations  imposed,  penalties  are 
not  unfrequently  denounced,  as,  for  illegal  voting  at  the  poll  for 
ratifying  or  rejecting  the  Constitution,  or  for  making  false  returns 
of  the  votes.1 

Now,  is  it  reasonable  to  deny  to  acts  of  the  legislature,  bear 
ing  thus  the  style  and  semblance  of  laws,  containing  mandatory 
clauses  directed  to  public  officers  or  to  individual  citizens,  ac 
companied  by  penalties  for  such  as  should  transgress  or  disobey 
them,  the  force  of  laws  ? 

§  548.  Similar  considerations  apply,  to  some  extent,  to  the 
action  of  a  legislature  in  the  initiation  of  specific  amendments, 
or  in  the  matter  of  submitting  Constitutions  to  the  people.  The 
general  course,  in  these  cases,  is  for  the  legislature,  after  the  ap~ 
propriate  preliminaries,  to  require  the  electors,  on  a  day  specified, 
to  cast  their  votes  for  or  against  the  propositions  indicated  by  it, 
laying  down  for  the  direction  of  the  public  officers,  as  well  as 
of  the  voters,  the  specific  injunctions  needed  to  secure  an  ade 
quate  and  honest  expression  of  the  public  will.  Can  a  reason 
be  conceived  why  the  intervention  of  a  legislature  in  this  busi 
ness,  prescribing  rules  of  conduct,  and  denouncing,  as  it  com 
monly  does,  penalties  for  acts  of  disobedience,  should  not  be 
considered  an  act  of  legislation  as  much  as  when  it  takes  steps 
identical  in  character,  but  respecting  interests  that  are  temporary 
and  trivial  ? 

The  soundness  of  this  view  may  be  tested  by  adverting  to 
the  consequences  of  denying  to  the  Acts  in  question  validity  as 
laws,  and  conceiving  of  them  as  simple  recommendations.  What 
certainty  could  there  be  as  to  the  result  of  an  election,  in  which 
some  of  the  voters  should  obey,  and  some  should  disobey  the 

1  The  Act  of  the  New  York  Legislature,  passed  March  21,  1821,  calling  the 
Convention  of  that  year,  contained  provisions  on  all  these  subjects,  of  the  kinds 
indicated. 


WHEN  IT  PARTICIPATES  IN   AMENDING   A    CONSTITUTION.      505 

commands  of  the  legislature,  with  reference,  for  example,  to  vot 
ing  without  prescribed  qualifications,  or  to  taking  an  oath  to 
discharge  the  duty  of  inspectors  of  the  election  faithfully,  and 
to  make  due  returns  thereof  to  the  specified  officers  ?  Without 
the  restraints  of  law,  what  are  usually  regarded  as  necessary 
safeguards  of  elections  would  rest  merely  in  the  discretion  of 
the  persons  offering  to  vote  ;  that  is,  they  would  practically  have 
no  existence ;  and,  of  course,  the  elections,  considered  as  expres 
sions  of  the  public  voice,  would  be  a  mere  farce.  As  to  those 
parts  of  the  action  of  a  legislature  indicated,  then,  we  are  forced 
to  concede  that  it  is  properly  legislative. 

§  549.  2.  On  the  other  hand,  when  the  legislative  action  con 
sists  simply  in  affirming,  by  a  resolution  intended  only  as  a  step 
preparatory  to  further  and  other  action  either  of  that  or  of  some 
other  body,  the  expediency  of  amending  the  Constitution,  or  in 
merely  proposing  such  amendments  as  it  deems  desirable,  such 
action  cannot  properly  be  called  legislative.  A  mere  declaration 
of  opinion  or  a  recommendation,  to  which  the  people  may  or  may 
not,  at  their  discretion,  assent,  it  would  be  an  abuse  of  language 
to  style  a  command,  or  a  rule  of  civil  conduct.  A  good  example 
of  such  recommendatory  action,  is  that  exhibited  by  Congress 
in  proposing  amendments  to  the  Federal  Constitution.  When 
that  body  has  proposed  the  amendments  deemed  by  it  to  be  desir 
able,  its  action  is  at  an  end.  If  the  propositions  it  makes  receive 
the  ratification  of  the  legislatures  of  three-fourths  of  the  States, 
or  of  Conventions  in  three-fourths  thereof,  they  become  parts  of 
the  Constitution  ;  otherwise,  they  fall  to  the  ground. 

Upon  this  point  we  are  not  without  authority  to  which  great 
respect  is  due.  In  the  Massachusetts  Convention  of  1820,  in  a 
discussion  of  a  report  of  a  committee  on  the  subject  of  future 
amendments  by  the  specific  mode,  on  the  recommendation  of 
two-thirds  of  each  house,  Mr.  Webster  moved  to  amend  by  re 
quiring  two-thirds  of  the  House,  and  a  majority  of  the  Senate, 
and  in  support  of  his  amendment  said :  — 

"  The  object  of  the  mode  proposed  for  making  amendments 
....  was  to  prevent  the  people  from  being  called  upon  to  make 
trivial  amendments,  or  any  amendments,  except  when  a  real  evil 
existed.  •  A  reason  for  requiring  two-thirds  of  the  House,  and 
only  a  majority  of  the  Senate,  was,  that  the  general  sense  of 
the  people  was  better  expressed  by  representatives  from  small 


506  EXTENT   OF   THE   POWER   OP   A   LEGISLATURE 

districts,  than  from  large  ones.  This  was  not  an  exercise  of  leg 
islative  power  —  it  was  only  referring'  to  some  branch  the  power 
of  making' propositions  to  the  people" ] 

So,  also,  on  the  same  subject,  Mr.  Lincoln  said  :  — 

"  The  whole  power  in  relation  to  amendments,  might  as  well 
be  left  to  the  Senate  as  to  require  the  consent  of  two-thirds.  .  .  . 
One-third  of  the  Senate  might  be  chosen  by  a  little  more  than 
one-fifth  of  the  people,  and  might  prevent  the  wishes  of  the 
other  four-fifths.  .  .  .  There  was  no  danger  of  a  political  excite 
ment  continuing  two  years,  so  as  to  have  a  bad  influence  on  the 
frame  of  government.  The  proposing-  amendments  was  not  a 
subject  of  legislation,  and  there  was  no  need  of  a  check.'1 2  The 
aim  of  these  gentlemen  was  to  show  that  in  requiring  more  than 
a  majority  of  the  legislature  or  of  some  branch  of  it,  to  propose 
amendments  to  the  Constitution,  no  principle  was  violated,  as 
would  have  been  the  case  had  it  been  an  exercise  of  ordinary 
legislation,  for  which,  by  the  common  practice  of  all  free  gov 
ernments,  a  majority  is  sufficient.  Being  not  an  exercise  of 
legislation  at  all,  there  was  no  impropriety  in  requiring  a  vote 
of  two-thirds  or  of  any  other  majority. 

§  550.  In  the  Virginia  Convention  of  1829,  one  speaker,  Mr. 
Thompson,  went  beyond  the  position  taken  by  Messrs.  Webster 
and  Lincoln,  above  explained,  and  denied  that  Acts  of  the  legis 
lature  to  take  the  sense  of  the  people,  or  to  organize  a  Conven 
tion,  were  Acts  of  ordinary  legislation.  He  said  :  — 

"  No  one  ever  supposed  that  the  Acts  to  take  the  sense  of 
the  people,  and  to  organize  a  Convention,  were  Acts  of  ordinary 
legislation ;  or,  properly  speaking,  Acts  of  legislation  at  all,  as 

little  so  as  an  election  by  that  body  of  any  officer The 

truth  is,  the  action  of  the  ordinary  legislature  on  this  subject  .  .  . 
is  not  of  the  character  of  ordinary  legislation.  It  is  in  the  nature 
of  a  resolve  or  ordinance  adopted  by  the  agents  of  the  people, 
not  in  their  legislative  character,  for  the  purpose  of  collecting 
and  ascertaining  the  public  will,  both  as  to  the  call  and  organ 
ization  of  a  Convention,  and  upon  the  ratification  or  rejection 
of  the  work  of  a  Convention."  3  It  being  a  matter  of  interest 
to  know  what  such  Acts  were,  if  not  Acts  of  legislation,  the 
speaker  thus  explained  his  views  on  that  subject :  —  * 

i  Deb.  Mass.  Cony.  1820,  p.  407.  2  H.  405. 

3  Deb.  Va.  Conv.  1829,  p.  887. 


TO   RECOMMEND   SPECIFIC   AMENDMENTS.  507 

"  The  Acts  spoken  of  were  called  for  by  their  constituents, 
resulted  from  the  necessity  of  the  case,  and  were  justified  by 
that  supreme  and  paramount  law,  the  solus  populi.  In  short, 
they  supplied  the  only  mode  by  which  the  original  right  of  the 
people  to  meet  in  full  and  free  Convention  to  reform,  alter,  or 
abolish  their  form  of  government,  could  be  exercised  without 
jeopardizing  the  peace,  tranquillity,  and  harmony  of  the  State."  l 

Thus,  to  escape  the  conclusion  that  the  Convention  Act  was 
a  law,  binding  upon  the  members  of  the  Convention,  the  speaker 
based  the  Act  of  the  legislature  upon  usurpation,  and  that  of 
the  people  in  pursuance  of  it,  upon  the  right  of  revolution.  To 
this  hard  necessity  was  he  reduced  to  sustain  the  main  position 
taken  in  his  argument,  that  the  submitting  of  the  Virginia  Con 
stitution  to  the  people,  in  a  manner  different  from  that  prescribed 
by  the  General  Assembly,  was  not  an  illegal  act,  or  one  which 
the  Convention  had  no  power  to  do. 

.§  551.  II.  In  relation  to  the  extent  of  the  power  of  a  legis 
lature  to  recommend  specific  amendments  to  a  Constitution,  in 
what  I  have  denominated  the  specific  mode,  I  shall  content  my 
self  with  considering  one  or  two  cases  which  have  actually  arisen 
in  our  courts,  and  with  a  few  observations  upon  them. 

The  14th  Section  of  the  Bill  of  Rights  of  the  Arkansas  Con 
stitution  of  1836,  contained  the  following  provision  :  "  That  no 
man  shall  be  put  to  answer  any  criminal  charge  but  by  present 
ment,  indictment,  or  impeachment."  By  the  24th  Section,  it  was 
declared  as  follows  :  "  Every  thing  in  this  Article  "  (Article  II., 
comprising  the  Bill  of  Rights)  "  is  excepted  out  of  the  general 
powers  of  government,  and  shall  forever  remain  inviolate."  At  its 
session  in  1844,  the  General  Assembly  of  Arkansas,  in  pursuance 
of  authority  given  in  the  Constitution,  proposed  an  amendment 
to  the  Constitution,  which  was  finally  adopted  by  the  next  suc 
ceeding  General  Assembly,  in  1846,  to  the  following  effect:  the 
amendment  declares  that  "the  General  Assembly  shall  have 
power  to  confer  such  jurisdiction  as  it  may  from  time  to  time 
deem  proper,  on  justices  of  the  peace,  in  all  matters  of  contract, 
covenants,  and  actions  for  the  recovery  of  fines  and  forfeitures, 
when  the  amount  claimed  does  not  exceed  one  hundred  dollars ; 
and  in  actions  and  proceedings  for  assault  and  battery,  and  other 
penal  offences,  less  than  felony,  which  may  be  punished  by  fine 
only." 

1  Deb.  Va.  Conv.  1829,  p.  887. 


508        EXTENT  OP  THE  POWER  OP  A  LEGISLATURE 

For  the  purpose  of  carrying  into  effect  the  power  thus  con 
ferred,  the  General  Assembly,  in  December,  1846,  passed  an  Act 
entitled  "An  Act  to  define  the  Jurisdiction  and  regulate  the  Pro 
ceedings  of  Justices'  Courts  in  cases  of  Breaches  of  the  Peace," 
of  which  the  1st  Section  declared,  that  K  hereafter  no  assault 
and  battery  or  affray  shall  be  indictable,  but  such  offences  shall 
be  prosecuted  and  punished  in  a  summary  manner,  by  present 
ment  of  a  constable,  or  any  other  person,  before  justices  of  the 
peace,  as  hereinafter  provided ; "  thus,  contrary  to  the  14th  Sec 
tion  of  the  Bill  of  Rights  as  it  originally  stood,  putting  persons 
arrested  for  assault  and  battery,  or  for  an  affray  —  both  criminal 
charges — to  answer  without  "  presentment,  indictment,  or  im 
peachment."  At  the  October  Term,  1847,  of  the  Circuit  Court 
of  Carroll  County,  the  grand  jurors  returned  an  indictment 
against  Jackson  A.  Cox,  for  an  assault  and  battery.  Defendant 
pleaded  to  the  jurisdiction  of  the  court,  alleging  that  by  the  Act 
of  December  16th,  1846,  the  court  was  divested  of  jurisdiction 
of  the  offence,  and  jurisdiction  thereof  given  to  justices  of  the 
peace.  To  this  plea  the  Attorney  for  the  State  demurred,  the 
court  overruled  the  demurrer,  and  the  State  appealed. 

On  the  hearing  in  the  Supreme  Court,  the  point  raised  was, 
that  the  Bill  of  Rights  had  not  been  amended  by  the  proceed 
ings  of  the  legislature,  but  was  still  in  force,  notwithstanding 
those  proceedings,  that  body  having  no  power  to  amend  that 
part  of  the  fundamental  law,  under  the  specific  power  given  it 
to  amend  the  Constitution,  by  Article  IV.  §  35,  thereof ;  since  by 
the  terms  of  Section  24  of  the  Bill  of  Rights  (Article  II.)  every 
thing  contained  in  that  Article  was  excepted  out  of  the  general 
powers  of  government. 

§  552.  This  objection  the  Supreme  Court  overruled,  and  sus 
tained  the  judgment  of  the  court  below  declaring  the  amend 
ment  valid  and  the  Act  constitutional.  By  Oldham  J.,  they 
say  :  — 

"  To  the  general  and  ordinary  powers  of  the  government  con 
ferred  by  the  Constitution,  the  prohibition  extends,  and  no  further, 
but  does  not  limit  the  General  Assembly,  in  the  extraordinary 
and  specific  authority  and  power  conferred  upon  it,  to  propose 
and  adopt  amendments  to  the  Constitution.  The  Constitution, 
in  prescribing  the  mode  of  amending  that  instrument,  does  not 
limit  the  power  conferred  to  any  particular  portion  of  it,  and 


TO    RECOMMEND   SPECIFIC   AMENDMENTS.  509 

except  other  provisions  by  declaring  them  to  be  amendable.  The 
General  Assembly,  in  amending  the  Constitution,  does  not  act 
in  the  exercise  of  its  ordinary  legislative  authority,  of  its  general 
powers ;  but  it  possesses  and  acts  in  the  character  and  capacity 
of  a  Convention,  and  is,  quoad  hoc,  a  Convention,  expressing  the 
supreme  will  of  the  sovereign  people,  and  is  unlimited  in  its 
power  save  by  the  Constitution  of  the  United  States.  There 
fore  every  change  in  the  fundamental  law,  demanded  by  the 
public  will  for  the  public  good,  may  be  made  subject  to  the  lim 
itation  above  named."  1 

§  553.  Three  years  later,  the  composition  of  the  Supreme 
Court  having  undergone  a  change,  another  case,  similar  in  its 
essential  circumstances,  except  that  the  Circuit  Court  had  pro 
nounced  against  the  validity  of  the  amendment,  notwithstand 
ing  the  above  decision,  came  before  that  tribunal  on  appeal  taken 
by  the  respondent.2 

After  full  argument,  the  main  point  decided  by  the  court  in 
The  State  v.  Cox,  was  overruled,  the  judges  holding,  that  the 
provisions  of  the  Bill  of  Rights  constitute  the  essential  princi 
ples  of  free  government  —  the  great  landmarks  of  freedom  — 
that  the  power  to  repeal  or  change  them  is  not  given  to  the 
General  Assembly  when  acting  either  in  the  exercise  of  ordi 
nary  legislative  authority  or  in  the  exercise  of  the  higher  power 
of  amending  the  Constitution,  but  is  reserved  to  the  people 
themselves,  acting  through  a  Convention,  lawfully  called. 

The  principal  argument  by  which  this  position  was  supported, 
rested  upon  a  construction  of  Section  24,  —  the  concluding  sec 
tion  of  the  Bill  of  Rights,  —  a  part  of  which  has  been  given 
above,  but  which,  entire,  is  as  follows  :  — 

"  This  enumeration  of  rights  shall  not  be  construed  to  deny  or 
disparage  others  retained  by  the  people;  and  to  guard  against 
any  encroachment  on  the  rights  herein  retained,  or  any  transgres 
sion  of  any  of  the  higher  powers  herein  delegated,  we  declare, 
that  every  thing  in  this  Article  is  excepted  out  of  the  general 
powers  of  government,  and  shall  forever  remain  inviolate  ;  and 
that  all  laws  contrary  thereto,  or  to  the  other  provisions  herein 
contained,  shall  be  void." 

By  the  court  it  was  maintained,  that  one  of  "  the  higher  pow- 

1  The  State  v.  Cox,  3  English's  R.  436. 

2  Eason  v.  The  State,  6  English's  R.  481. 


510  EXTENT  OP  THE   POWER  OF   A  LEGISLATURE. 

ers  herein  delegated,"  was  the  power  of  amendment ;  since,  they 
said,  in  those  terms  must  be  included  all  the  powers  delegated, 
whether  they  be  denominated  "  general  powers "  or  "  specific 
powers ;  "  "  inevitably,  therefore,"  it  was  said,  "  if  these  powers 
of  amendment  be  a  portion  of  the  '  higher  powers  delegated,' 
which  no  one  will  attempt  to  gainsay,  they  must  necessarily  be 
as  much  within  the  controlling  influence  of  the  provisions  of  the 
Bill  of  Rights,  as  any  others  of  these  delegated  powers."  1 

§  554.  Upon  this  decision  of  the  court,  I  shall  make  but  one 
or  two  observations. 

That  the  reasoning  of  the  court  in  relation  to  Section  24  of 
the  Bill  of  Rights  and  the  power  of  amendment,  is  utterly  fal 
lacious,  becomes  evident  when  that  section  is  fairly  interpreted, 
according  to  its  terms,  and  considered  in  connection  with  the 
other  sections  of  the  Bill  of  Rights. 

Read  and  interpreted  as  it  should  be,  Section  24  is  as  fol 
lows  :  — 

"  This  enumeration  of  rights  shall  not  be  construed  to  deny 
or  disparage  others  retained  by  the  people,"  —  that  is,  the  rule 
of  law,  "  expressio  unius  est  exclusio  alterius,"  shall  not  obtain, 
as  a  rule  of  construction,  in  relation  to  this  Bill  of  Rights,  but 
the  people  shall  hold  and  enjoy  all  such  rights  as  belong  to  them, 
whether  specified  in  this  Bill  of  Rights  or  not;  —  "  and  to  guard 
against  any  encroachment  on  the  rights  herein  retained"  that 
is,  in  this  Bill  of  Rights  specially  reserved  to  the  people ;  "  or 
any  transgression  of  any  of  the  higher  powers  herein  delegated" 
that  is,  in  this  Bill  of  Rights  delegated  ;  "  we  declare  that  every 
thing  in  this  Article,"  that  is,  in  this  Bill  of  Rights,  "  is  excepted 
out  of  the  general  powers  of  government,  and  shall  forever 
remain  inviolate,"  that  is,  the  three  departments  of  the  govern 
ment,  created  by  the  following  Articles  of  this  Constitution,  leg 
islative,  executive,  and  judicial,  and  invested,  severally,  in  gen 
eral  terms,  with  governmental  powers,  shall  not,  by  reason  of  the 
generality  of  the  grants  of  power  to  them,  presume  to  encroach 
on  the  rights,  or  transgress  any  of  the  powers,  in  this  Bill  of 
Rights  retained  or  delegated,  but  the  same  shall  forever  remain 
inviolate;  "and"  we  further  declare,  "that  all  laws  contrary 
thereto,  or  to  the  other  provisions  herein  contained,  shall  be  void," 
that  is,  that  all  laws,  passed  by  the  General  Assembly,  by  virtue 
i  Eason  v.  The  State,  6  English's  R.  481  (490). 


TO    RECOMMEND    SPECIFIC    AMENDMENTS.  511 

of  its  general  power  of  legislation,  contrary  either  to  the  rights 
retained,  the  powers  delegated,  or  the  other  provisions  contained 
in  this  Bill  of  Rights,  shall  be  void. 

§  555.  That  this  is  the  true  interpretation  of  the  section  in 
question  is  evident  from  a  careful  inspection  of  the  Bill  of 
Rights  as  a  whole.  The  interpretation  given  requires  us  to  find 
in  the  Bill  of  Rights  three  classes  of  provisions :  1,  such  as  re 
serve  to  the  people  rights  ;  2,  such  as  delegate  powers ;  and  3, 
other  provisions,  differing  from  both  the  other  two. 

Of  the  first  class  there  are  numerous  examples,  such  as  the 
right  to  bear  arms,  freely  to  assemble  and  to  apply  for  redress  of 
grievances,  &c.  Of  powers  delegated,  instances  are  found  in 
Section  23,  which  provides,  that  "  the  military  shall  be  kept 
in  strict  subordination  to  the  civil  power;"  and  in  Section  8, 
which  permits  the  giving  of  the  truth  in  evidence  in  prose 
cutions  for  the  publication  of  papers  investigating  the  official 
conduct  of  officers  or  men  in  a  public  capacity;  and  empowers 
juries  "  to  determine  both  the  law  and  the  facts  "  in  all  indict 
ments  for  libels.  These  provisions  clearly  involve  a  grant  of 
power  to  the  General  Assembly  to  make  laws  in  harmony  with 
them,  and  to  carry  them  into  effect,  making  it  at  the  same  time 
its  duty  to  do  so.  Of  other  provisions,  examples  are  found  in 
those  clauses  of  the  Bill  of  Rights  which  are  couched  in  nega 
tive  terms,  and  operate  as  restraints  upon  the  various  depart 
ments  of  the  government,  in  the  exercise  of  their  acknowledged 
powers,  rather  than  as  substantive  grants,  or  positive  recogni 
tions  of  rights  or  powers.  Such  are  the  provisions  against  ex 
post  facto  laws,  the  putting  of  persons  twice  in  jeopardy  of  life 
or  limb,  for  the  same  offence,  and  the  like. 

Having  thus  its  full  operation  by  applying  it  to  the  Bill  of 
Rights  alone,  it  is,  in  my  judgment,  erroneous  to  extend  the 
provision  of  the  24th  Section,  as  do  the  Court  in  the  case  under 
consideration,  to  that  part  of  the  Constitution  relating  to  the 
making  of  amendments  by  the  General  Assembly. 

Besides,  it  is  noticeable,  that  it  is  "  out  of  the  general  powers 
of  government "  that  every  thing  enumerated  in  the  Bill  of 
Rights  is  excepted,  not  out  of  powers  which  are  not  powers  of 
government  at  all,  like  that  of  amending  the  Constitution  given 
to  the  General  Assembly.  A  power  of  government  is  a  power 
which  expends  itself  in  administering  or  operating  the  political 


512  SHOULD   SPECIFIC   AMENDMENTS 

machine  established  by  the  Constitution,  not  one  which  goes  to 
the  rebuilding  of  that  machine  itself;  or,  to  use  a  metaphor 
already  once  employed  by  me,  it  is  a  power  proper  not  for  the 
millwright,  but  for  the  miller. 

I  need  hardly  say,  therefore,  that  I  deem  the  first  decision  of 
the  Supreme  Court,  in  the  case  of  The  State  v.  Cox,  the  better 
law.  It  expresses  with  admirable  brevity,  force,  and  clearness, 
the  true  doctrine  in  regard  to  the  power  of  our  General  Assem 
blies  under  similar  clauses  of  our  Constitutions. 

§  556.  III.  The  question  has  been  raised,  whether  or  not 
propositions  of  specific  amendments  to  a  Constitution,  made  by 
a  legislature,  under  the  constitutional  provisions  referred  to, 
ought  to  be  submitted  to  the  executive  for  approval. 

Judging  of  this  question  from  a  priori  considerations,  it 
seems  that  the  answer  should  be,  that  whenever  the  proposi 
tions  are  coupled  with  provisions  which  impart  to  the  legislative 
Act,  in  whole  or  in  part,  the  force  of  law,  according  to  the  prin 
ciples  above  explained,1  they  ought  to  receive  the  approval  and 
the  signature  of  the  executive  ;  but  that  when  they  bear  only  the 
character  of  recommendations,  they  ought  not  to  be  submitted 
to  the  executive.  The  reason  for  this  distinction  is  simple.  By 
our  Constitutions,  all  Acts  of  the  legislature,  before  they  can 
become  operative  as  laws,  must  receive  the  sanction  and  signa 
ture  of  the  executive  branch  of  the  government.  An  Act  which 
is  not  legislative  in  its  nature,  and  when  perfect  and  operative 
to  the  full  extent  intended  by  its  framers,  is  yet  destitute  of  all 
vigor  as  a  law,  not  coming  within  the  terms  of  the  constitu 
tional  provisions,  would  clearly  not  be  subject  to  the  same  con 
ditions. 

1.  This  question,  so  far  as  relates  to  amendments  to  the 
Federal  Constitution,  has  been  several  times  the  subject  of  dis 
cussion  in  Congress,  and  once  of  adjudication  in  the  Supreme 
Court  of  the  United  States. 

The  clauses  of  the  Constitution  of  the  United  States,  bear 
ing  on  the  question,  are  as  follows  :  — 

"  Art.  V.  The  Congress,  whenever  two-thirds  of  both  houses 
shall  deem  it  necessary,  shall  propose  amendments  to  this  Con 
stitution,  ....  which  shall  be  valid  to  all  intents  and  purposes 
as  part  of  this  Constitution,  when  ratified  by  the  legislatures  of 
l  See  ante,  §§  547-550. 


BE  SUBMITTED  TO  THE  EXECUTIVE?  513 

three-fourths  of  the  several  States,  or  by  Conventions  in  three- 
fourths  thereof,  as  the  one  or  other  mode  of  ratification  may  be 
proposed  by  Congress." 

Art.  I.  Sec.  7.  "  Every  order,  resolution,  or  vote,  to  which  the 
concurrence  of  the  Senate  and  House  of  Representatives  may 
be  necessary  (except  on  a  question  of  adjournment),  shall  be 
presented  to  the  President  of  the  United  States ;  and,  before 
the  same  shall  take  effect,  shall  be  approved  by  him,  or,  being 
disapproved  by  him,  shall  be  repassed  by  two-thirds  of  the  Sen 
ate  and  House  of  Representatives,  according  to  the  rules  and 
limitations  presented  in  the  case  of  a  bill." 

§  557.  It  would  naturally  be  supposed  that  a  recommenda 
tion  of  amendments  by  Congress,  by  two-thirds  of  both  houses, 
if  not  a  bill,  might  properly  be  designated  as  a  resolution 
or  vote ;  and  hence,  that  by  the  very  terms  of  Art.  I.  Sec.  7, 
above  quoted,  such  a  recommendation  ought  to  receive  the 
approval  of  the  Executive. 

On  the  other  hand,  a  close  examination  of  Article  V.  shows 
that  it  contemplates  nothing  but  a  mere  expression  of  opinion 
that  amendments  to  the  Constitution  are  necessary.  That  body 
being  a  numerous  one,  and  representing  the  people,  it  is  deemed 
probable  that,  whenever  two-thirds  of  both  its  branches  pro 
nounce  particular  organic  changes  to  be  expedient,  such  is  the 
sense  of  the  people  at  large.  There  is  to  be  no  submitting  of 
propositions  to  a  vote  of  the  people,  consequently  no  directions 
for  conducting  an  election,  or  making  returns  of  votes,  —  in 
short,  no  prescribing  of  a  rule  of  action  to  officers  or  citizens, 
for  the  reason  that  all  action  upon  the  subject  is  to  be  taken  by 
separate  agencies  fully  organized  under  State  laws.  In  this 
view  of  the  Constitution,  then,  the  necessity  of  executive  ap 
proval  seems  to  be  very  doubtful ;  and  of  this  opinion  are  the 
authorities  generally. 

Amendments  to  the  Federal  Constitution  were  proposed  by 
Congress  in  1789,  in  1794,  in  1803,  and  in  1866,  and  in  neither 
case  were  they  presented  to  the  President  for  his  approval.1 
The  same  is  substantially  true  of  the  amendments  relative  to 
slavery  proposed  by  the  same  body  in  1865.2 

i  See  Speech  of  Senator  Trumbull  of  Illinois,  in  the  Senate  of  the  United 
States,  in  Daily  Globe  for  Feb.  8,  1865.  See  also  Hollingsworth  v.  Virginia,  3 
Dall.  R.  878.  2  Ibid. 

33 


514  SHOULD   SPECIFIC   AMENDMENTS 

The  question  we  are  considering  was  passed  upon  by  the 
Supreme  Court  of  the  United  States,  in  the  case  of  Hollings- 
worth  v.  The  State  of  Virginia,1  in  relation  to  the  eleventh 
amendment,  proposed  in  1794.  The  validity  of  that  amend 
ment  was  denied  by  one  of  the  parties  in  that  cause,  on  the 
ground  that  it  had  "  not  been  proposed  in  the  form  prescribed  by 
the  Constitution,"  in  that  it  appeared,  upon  an  inspection  of 
the  original  roll,  that  "  the  amendment  was  never  submitted 
to  the  President  for  his  approbation."  In  support  of  this  posi 
tion,  the  language  of  the  first  article  of  the  Constitution,  above 
given,  was  mainly  relied  upon  ;  and  to  the  argument  of  the  op 
posing  counsel,  that  as  two-thirds  of  both  houses  were  required 
to  originate  the  proposition,  it  would  be  nugatory  to  return  it 
with  the  President's  negative,  to  be  repassed  bj  the  same 
number,  it  was  answered  that  that  was  no  reason  for  not  pre 
senting  it  to  the  President,  since  the  reasons  assigned  by  the 
latter  for  his  disapprobation  might  be  so  satisfactory  as  to  re 
duce  the  majority  below  the  constitutional  proportion.  On  the 
other  side,  beside  the  argument  above  specified,  it  was  urged  by 
Lee.  Attorney-General,  that  the  case  of  amendments  was  evi 
dently  "  a  substantive  act,  unconnected  with  the  ordinary  busi 
ness  of  legislation,  and  not  within  the  policy  or  terms  of  invest 
ing  the  President  with  a  qualified  negative  on  the  Acts  and 
Resolutions  of  Congress." 

On  the  day  following  the  argument,  a  unanimous  per  curiam 
opinion  was  delivered,  that  the  amendment  had  been  constitu 
tionally  adopted.  The  only  language  used  by  the  Court  which 
appears  in  the  report  is  that  of  Chase,  Justice,  who  observed  as 
follows :  —  "  The  negative  of  the  President  applies  only  to  the 
ordinary  cases  of  legislation  :  he  has  nothing  to  do  with  the 
proposition  or  adoption  of  amendments  to  the  Constitution." 

§  558.  The  opinion  thus  expressed  by  the  Supreme  Court  co 
incides  with  that  entertained  by  the  Senate,  when  the  amend 
ment  of  1803,  respecting  the  mode  of  electing  President  and 
Vice-President  of  the  United  States,  was  under  consideration. 
From  the  journals  of  that  body,  it  appears  that  the  question 
was  distinctly  raised  on  a  motion  that  the  amendment  should 
be  submitted  to  the  President  for  his  approval.  The  following 
is  the  entry  on  that  subject :  — 

i  3  Dall.  R.  378. 


BE  SUBMITTED   TO   THE   EXECUTIVE?  515 

"  On  motion  that  the  Committee  on  Enrolled  Bills  be  directed 
to  present  to  the  President  of  the  United  States,  for  his  appro 
bation,  the  resolution  which  has  been  passed  by  both  Houses  of 
Congress,  proposing  to  the  consideration  of  the  State  legisla 
tures  an  amendment  to  the  Constitution  of  the  United  States, 
respecting  the  mode  of  electing  President  and  Vice-President 
thereof,  it  was  passed  in  the  negative  —  yeas  7,  nays  23." 

§  559.  In  1865,  the  amendment  proposed  by  Congress,  rela 
tive  to  slavery,  having  by  inadvertence  been  presented  to  the 
President  of  the  United  States  for  his  approval  by  a  subordinate 
officer  of  the  Senate,  Senator  Trumbull,  of  Illinois,  chairman  of 
the  Judiciary  Committee  of  that  body,  introduced  the  following 
resolution :  — 

"  Resolved,  That  the  article  of  amendment  proposed  by  Con 
gress  to  be  added  to  the  Constitution  of  the  United  States,  re 
specting  the  extinction  of  slavery  therein,  having  been  inad 
vertently  presented  to  the  President  for  his  approval,  it  is  hereby 
declared  that  such  an  approval  was  unnecessary  to  give  effect 
to  the  action  of  Congress  in  proposing  said  amendments,  incon 
sistent  with  the  former  practice  in  reference  to  all  amendments 
to  the  Constitution  heretofore  adopted,  and  being  inadvertently 
done,  should  not  constitute  a  precedent  for  the  future ;  and  the 
Secretary  is  hereby  instructed  not  to  communicate  the  notice  of 
the  approval  of  said  amendment  by  the  President  to  the  House 
of  Representatives." 

Upon  this  resolution  a  discussion  arose,  in  which  were  exhib 
ited  the  reasons  for  and  against  presenting  amendments  in  such 
cases  to  the  President,  with  great  fullness. 

In  favor  of  such  presentation,  it  was  argued,  that  the  express 
language  of  the  Constitution  required  it,  for  it  said,  "every 
order,  resolution,  or  vote  to  which  the  concurrence  of  the  Sen 
ate  and  House  of  Representatives  may  be  necessary,"  which 
covered  this  case  precisely.  Propriety,  moreover,  sanctioned 
such  a  course ;  for,  if  the  President  should  dissent,  and  present 
his  objections  to  the  two  houses,  it  did  not  follow  that  the  vote 
of  two-thirds  could  be  again  had  to  repass  the  resolution.  And 
there  seemed  a  necessity,  it  was  said,  that  the  resolution  should 
be  presented  to  the  President,  since  only  through  him,  by  the 
Secretary  of  State,  could  it  readily  be  transmitted  to  the  legisla 
tures  of  the  several  States.  Without  special  provision  of  law, 


516  SHOULD   SPECIFIC    AMENDMENTS 

unless  it  passed  through  the  hands  of  the  President,  it  would  lie 
a  dead  letter.  As  to  the  decision  of  the  Supreme  Court,  while 
it  could  not  be  denied  that  Justice  Chase  had  said  that  the  pro 
visions  of  the  Constitution  applied  only  to  ordinary  acts  of 
legislation,  and  that  the  Court  concurred  with  him,  yet  not  a 
single  reason  was  given  for  that  proposition,  nor  was  the  argu 
ment  made  by  counsel  against  the  validity  of  the  amendment 
answered  either  by  the  opposing  counsel  or  by  the  Court.  Be 
sides,  it  was  noticeable,  that  in  the  vote  which  was  taken  on  the 
question  in  1803,  among  the  names  of  those  who  voted  for  pre 
senting  the  resolution  to  the  President  were  those  of  Mr.  John 
Quincy  Adams  and  Mr.  Pickering,  and  when  such  gentlemen 
affirmed  a  step  to  be  necessary,  some  argument  might  fairly  be 
required  to  show  that  it  was  not  necessary.  Finally,  it  was 
denied  that  the  precedents  were  all  opposed  to  the  presentation 
to  the  President.  The  resolution  passed  in  1861  for  an  amend 
ment  to  the  Constitution  interdicting  attempts  by  Congress  to 
interfere  with  slavery  in  the  States,  was  submitted  to  the  Presi 
dent,  and  approved  by  him,  without  objection,  as  in  case  of  an 
ordinary  law.1 

§  560.  On  the  other  hand,  by  Senators  Trumbull  and  Reverdy 
Johnson,  both  profound  lawyers  and  jurists,  it  was  strenuously 
contended  that  it  was  unnecessary  and  improper  to  present  the 
resolution  to  the  President.  Beside  referring  to  the  precedents 
explained  above,  it  was  urged  that  the  object  of  the  constitu 
tional  provision  on  the  subject  of  amendments  was  simply  to 
initiate  a  mode  by  which  the  people  should  decide  whether  there 
should  be  an  amendment  of  the  Constitution  or  not  The 
action  of  Congress  to  that  end  did  not,  it  was  said,  operate  as  a 
law.  The  whole  effect  of  it  was  to  submit  the  question  to  the 
people  for  their  determination.  Precisely  the  same  effect  was 
given  to  amendments  proposed  by  the  legislatures  of  the  States. 
It  would  not  be  contended  that  the  President  had  any  control 
over  a  Convention  called  by  two-thirds  of  the  State  legislatures. 
The  proposition  was,  that  no  proposal  by  Congress  of  an  amend 
ment  to  the  Constitution,  although  having  received  the  support 
of  two-thirds  of  both  houses,  was  to  be  submitted  to  the  States, 
unless  the  President  should  approve  it.  Suppose  the  other 
mode  of  proposing  amendments,  by  two-thirds  of  the  State 
1  Daily  Globe  for  Feb.  8,  1865,  Speech  of  Senator  Howe  of  Wisconsin. 


BE   SUBMITTED   TO   THE    EXECUTIVE?  517 

legislatures,  should  be  adopted,  would  the  President  have  any 
thing  to  do  with  that  ?  All  would  admit  that  he  would  not. 
Would  Congress  have  anything  to  do  with  that  ?  All  would 
admit  that  their  duty  would  be  an  imperative  one  —  simply  to 
call  a  Convention.  So  that  the  whole  object  of  the  clause 
seemed  to  be  to  provide  a  mode  by  which  the  people  might  be 
furnished  an  opportunity  of  deciding  whether  the  Constitution 
should  be  amended  or  not. 

Moreover,  what  made  it  still  more  obvious,  it  was  said,  that 
the  Convention  which  framed  the  Federal  Constitution  did  not 
intend  that  the  President  should  decide  upon  a  resolution  of 
that  description,  was,  that  the  resolution  was  not  to  be  passed 
unless  it  was  concurred  in  by  two-thirds  of  each  house.  The 
constitutional  provision  which  gives  to  the  President  the  author 
ity  to  veto  any  bill  submitted  to  him  says,  that  if  he  disapproves 
such  bill  or  resolution,  he  is  to  send  it  back  to  the  house  in 
which  it  originated,  and  if  passed  by  that  house  and  the  other 
by  two-thirds,  it  is  to  become  a  law  notwithstanding  the  veto. 
It  was  true,  it  did  not  follow  that  it  would  get  the  same  vote 
after  Congress  had  heard  the  President's  objections ;  but,  look 
ing  at  the  two  provisions  —  that  which  gives  to  the  President 
the  right  to  approve  or  disapprove,  and  that  which  looks  to  the 
duty  of  Congress  consequent  upon  his  disapproval — it  was 
evident,  it  was  said,  that  what  was  intended  to  be  submitted  to 
the  President  was  a  question  which  was  to  be  passed  upon  by 
more  votes  than  were  necessary  before  it  was  submitted.1 

After  these  arguments,  Mr.  TrumbulPs  resolution  was  agreed 
to  without  a  division. 

§  561.  2.  The  question  has  thus  far  been  considered  with 
reference  only  to  amendments  to  the  Constitution  of  the  United 
States.  Of  cases  where  amendments  have  been  made  to  State 
Constitutions,  I  have,  after  considerable  research,  been  enabled 
to  collect  only  the  following  precedents:  — 

In  the  Constitutions  severally  in  force  in  Connecticut,  Massa 
chusetts,  and  New  York,  specific  amendments  may  be  proposed 
by  the  legislature  by  resolutions,  which  are  then  referred  to  the 
legislature  next  to  be  chosen.  If  adopted  by  the  requisite  ma 
jority,  by  such  succeeding  legislature,  it  is  made  the  duty  of  the 
latter  to  submit  the  amendments  to  a  vote  of  the  people.  The 

i  Daily  Globe  for  Feb.  8,  1865,  Speeches  of  Senators  Trumbull  and  Johnson. 


518  SHOULD   SPECIFIC   AMENDMENTS 

practice  in  those  States  has  been  not  to  present  the  resolutions 
containing  the  proposed  amendments  to  the  Governor  for  ap 
proval,  but  to  present  to  that  officer  the  subsequent  Act  by  which 
they  are  submitted  to  the  people.  In  New  York,  the  proposi 
tions  of  amendment  are  sometimes  incorporated  in  a  bill,  pro 
viding  conditionally  in  one  or  more  clauses  for  submission  to  the 
people,  and  in  those  cases  the  bill  is  submitted  to  the  Governor 
for  his  approval.  The  existing  Constitutions  of  Michigan  and 
Minnesota  provide  that  amendments  may  be  proposed  by  a 
prescribed  majority  of  the  legislature,  after  which  they  are  re 
quired  to  be  submitted  by  that  body  to  the  people.  In  the 
former  State,  the  practice  has  been  to  effect  this  by  a  joint  reso 
lution,  and  in  the  latter,  by  a  bill ;  in  both  cases,  however,  com 
bining  the  propositions  and  the  clauses  submitting  them  to  the 
people  in  a  single  Act.  In  both  cases,  this  Act  is  presented  to 
the  Governor  for  his  sanction.  In  the  Constitutions  of  Georgia 
and  Rhode  Island,  amendments  are  permitted  to  be  made  by 
the  action  of  two  successive  legislatures,  without  submission  to 
the  people  ;  and  in  neither  case  are  the  resolutions  proposing 
the  amendments  presented  to  the  Governor.1  In  the  Constitu 
tion  of  Missouri  authorizing  amendments  to  be  made  in  the 
same  manner,  the  resolutions  of  the  first  legislature  are  pre 
sented  to"  the  Governor,  and  those  of  the  second,  not.  In  the 
Constitution  of  Maine,  finally,  amendments  may  be  proposed 
by  the  legislature,  which  are  then  to  be  submitted  to.  the  people, 
the  Constitution  itself  containing  particular  directions  as  to  the 
time  and  mode  of  holding  the  election,  and  no  action  on  the 

1  The  practice  is  the  same  in  Alabama,  though  there  the  Constitution  is 
submitted  to  the  people  between  the  two  successive  legislatures.  See  Collier  v. 
Frierson  et  al,  24  Ala.  R.  100. 

The  facts  in  the  case  of  Collier  v.  Frierson  are  as  follows  :  The  General  As 
sembly  of  Alabama  having,  at  its  session  in  1844-5,  proposed  several  amend 
ments  to  the  State  Constitution,  and  submitted  them  to  a  vote  of  the  people, 
and  the  people  having  voted  in  favor  of  them,  joint  resolutions  were  adopted 
at  the  next  succeeding  session  of  the  General  Assembly  reciting  these  facts,  and 
declaring  that  the  people  had  accepted  "  the  said  amendments,  which  are  in  the 
words  and  figures  following,"' — setting  them  all  out  except  one,  which  was  en 
tirely  omitted,  —  and  the  usual  clause  was  then  added,  enacting  that  "  the  afore 
said  amendments  to  the  Constitution,  proposed  as  aforesaid,  and  accepted  by  the 
people  as  aforesaid,  be  ratified  ; "  held,  "  that  the  amendment  which  was  entirely 
omitted  from  the  ratifying  resolutions  was  not  constitutionally  ratified,  and 
therefore  failed." 


BE  SUBMITTED  TO  THE  EXECUTIVE?  519 

part  of  the  legislature  being  requisite,  except  by  resolution  to 
notify  the  towns  to  vote  on  the  proposed  amendments  as  pre 
scribed  in  the  Constitution.  It  is  the  practice  to  present  the 
resolutions  embodying  the  amendments  to  the  Governor. 

In  all  these  cases,  the  Constitutions  give  to  the  Governor  a 
qualified  negative,  substantially  like  that  of  the  President  of 
the  United  States,  except  that  of  Rhode  Island,  which  provides 
no  negative  whatever.  One  Constitution,  that  of  Connecticut, 
gives  to  a  majority  of  the  legislature  the  power  of  passing  over 
the  Governor's  head  any  measure  returned  with  his  objections.1 
It  thus  appears  that  the  practice  of  the  legislatures  of  the 
several  States  is  generally  conformable  to  the  theoretical  princi 
ples  proper  to  govern  in  such  cases,  as  developed  in  previous 
sections  of  this  chapter. 

§  562.   While  the  foregoing  are  the  only  precedents  bearing 
on  the  question  under  consideration  which  I  have  been  able  to 
find,  indications  of  opinion  respecting  it  may  be  drawn  from 
the  provisions  of  two  Constitutions  —  that  of  Delaware  of  1792, 
and  that  of  Louisiana  of  1845.     By  the  former,  it  was  provided 
that  amendments   might   be    proposed   by  two-thirds   of  each 
house  of  the  legislature,  with  the  approbation  of  the  Governor. 
They  were  then  to  be  published,  and  if  adopted  by  three-fourths 
of  each  branch  of  the  succeeding  legislature,  they  should  be  valid 
as  parts  of  the  Constitution.     The  provision  of  the  Louisiana 
Constitution  was  the  same,  except  that  the  successive  legisla 
tures  were  to  adopt  the  amendments,  the  first  by  a  vote  of  three- 
fifths,  and  the  second  by  a  majority  only  of  the  persons  elected 
to  each  house,  and  they  were  then  to  be  submitted  to  the  people. 
In  these  cases,  it  is  perhaps  fair  to  infer  that  the  action  of  the 
second  legislature  did  not  require  the  approbation  of  the  Gov 
ernor,  else  the  clause  requiring  it  for  that  of  the  first  would 
have  been  so  worded  as  to  apply  to  both.     Especially  may  this 
be  inferred  in  relation  to  the  Louisiana  case,  since  the  Constitu 
tion  of  that  State  referred  to,  while  in  one  clause  permitting  the 
second  legislature  to  adopt  resolutions  of  amendment  by  a  ma 
jority  vote  merely,  in  another  required  to  overcome  the  nega 
tive  of  the  Governor  a  vote  of  two-thirds,  which,  supposing  a 
negative  in  such  cases  possible,  would  be  inconsistent  with  the 
former  provision. 

i  For  the  facts  stated  in  this  section  I  am  indebted  to  the  Secretaries  of  State 
of  the  several  States  mentioned  therein. 


520      WHEN   A   LEGISLATURE   HAS   ONCE   REJECTED   AN   AMENDMENT 

§  563.  IV.  There  arose  in  1865,  on  the  side  of  the  State 
legislatures,  a  question  whether,  when  an  amendment  had  been 
constitutionally  proposed  to  them  by  Congress,  and  one  of  those 
bodies  had  passed  upon  it  in  the  negative,  it  was  competent  for 
a  subsequent  legislature  to  reconsider  and  reverse  that  action. 
The  question  arose  in  Kentucky,  the  legislature  of  that  State 
having  rejected  the  amendment  abolishing  slavery  throughout 
the  United  States.  From  the  nature  of  the  case  there  was  no 
decision  having  the  force  of  a  precedent ;  but  the  legislature 
laying  before  the  Governor  its  resolution  of  rejection,  that  officer 
returned  to  it  a  communication  in  which,  after  expressing  his 
opinion  that  its  action  was  complete  without  his  approval,  he 
asserted,  in  very  forcible  terms,  his  conviction  that  its  act  reject 
ing  the  resolution  only  remitted  the  question  to  the  people  and 
the  succeeding  legislature,  and  no  more  precluded  future  ratifi 
cation  than  the  refusal  to  adopt  any  other  measure  would  pre 
clude  the  action  of  its  successors. 

After  citing  the  terms  of  the  Federal  Constitution,  which 
declared  amendments  proposed  by  Congress  to  be  valid  to  all 
intents  and  purposes  as  parts  of  that  instrument,  "  when  ratified 
by  the  legislatures  of  three-fourths  of  the  several  States,"  &c.,  he 
continued:  — 

"  When  ratified  by  the  legislatures  of  the  several  States,  the 
question  will  be  finally  withdrawn,  and  not  before.  Until  rati 
fied,  it  will  remain  an  open  question  for  the  ratification  of  the 
legislatures  of  the  several  States.  When  ratified  by  the  legisla 
ture  of  a  State,  it  will  be  final  as  to  such  State ;  and,  when 
ratified  by  the  legislatures  of  three  fourths  of  the  several  States, 
will  be  final  as  to  all.  Nothing  but  ratification  forecloses  the 
right  of  action.  When  ratified,  all  power  is  expended.  Until 
ratified,  the  right  to  ratify  remains."  l 

Although  the  subject  is  not  free  from  difficulties,  it  is  prob 
able  that  the  foregoing  will  be  accepted  as  the  true  construction 
of  the  fifth  article  of  the  Constitution.  It  could  hardly  have 
been  unintentional,  that  the  contingency  of  a  rejection  of  the 
proposed  amendment  by  one  or  more  States  was  left  unprovided 
for ;  and  it  would  seem  a  stretch  of  power  to  interpolate  into 
that  article  a  provision,  that  if  rejected  by  one  legislature  or  by 
three-fourths  or  even  all  of  the  legislatures,  such  action  should  be 

1  Message  of  Governor  Bramlette  of  March  1,  1865,  to  the  Kentucky  Legis 
lature. 


PROPOSED   BY   CONGRESS,   CAN   IT   RECONSIDER?  521 

taken  to  be  definitive.  On  the  contrary,  it  is  reasonable  to  sup 
pose  the  Convention  intended  to  give  to  dissenting  legislatures 
an  opportunity  to  recede  from  an  application  of  their  negative 
which  circumstances  might  show  to  be  hasty  and  disastrous. 

§  564.  V.  Before  concluding  the  discussion  of  the  doctrine 
of  amendments  to  Constitutions,  I  propose  further  to  consider 
a  question,  already  several  times  alluded  to  in  preceding  pages, 
but  particularly  germane  to  the  subject  now  in  hand,  namely, 
whether,  when  a  Constitution  contains  a  provision  for  effecting 
its  own  amendment,  in  either  of  the  modes  above  mentioned, 
another  and  a  different  mode  can  be  adopted,  or  whether  the 
constitutional  provision  must  alone  be  pursued  for  that  pur* 
pose? 

There  may  be  two  cases,  according  to  the  terms  in  which  the 
constitutional  provisions  are  couched. 

1.  The  Constitution  may  contain  clauses,  in  negative  terms, 
forbidding  amendments,  except  when  effected  in  a  prescribed 
mode.  Instances  of  this  kind  have  been  given  in  this  chapter,1 
of  which  that  contained  in  the  Constitution  of  West  Virginia 
is  the  most  striking.  That  Constitution,  Art.  XII.  provides  that 
no  Convention  is  to  be  called  to  amend  the  same,  "  unless  in 
pursuance  of  a  law  to  take  the  sense  of  the  people  on  the  ques 
tion  of  calling  a  Convention,  nor  unless  a  majority  of  the  votes 
of  the  people  should  be  in  favor  of  a  Convention."  It  also  pro 
vides  that  no  members  of  a  Convention  are  to  be  elected  "  until 
one  month  after  the  result  of  the  poll  should  be  ascertained  and 
published;"  and  that  all  Acts  and  Ordinances  of  any  such 
Convention  are  to  be  submitted  to  the  voters  of  the  State  for 
ratification  or  rejection,  and  "  are  to  have  no  validity  whatever 
until  they  are  ratified." 

The  question  as  to  the  force  of  such  provisions  may  be  deter 
mined  by  considering  the  case  of  a  Convention  called  by  the 
legislature  of  West  Virginia,  without  submitting  the  question 
of  calling  it  to  the  voters,  as  required  by  the  Constitution.  In 
my  judgment,  it  would  be  impossible  to  attribute  to  such  a 
body  any  validity  or  legitimacy  whatever.  The  Act  by  which 
it  should  be  assembled  would  have  been  passed  in  direct  and 
palpable  violation  of  the  paramount  law  of  the  State,  and 
would,  therefore,  bind  neither  the  magistrate  nor  the  citizen ;  it 

1  Ante,  §  537. 


522      IF   THE   CONSTITUTION   PROVIDES   ONE   MODE   OF   AMENDMENT, 

would  be  an  act  of  revolution.  This  is  too  plain  for  argument; 
and,  in  my  view,  all  cases  depending  on  provisions  of  a  similar 
character  are  to  be  governed  by  the  same  considerations. 

§  565.  That  the  estimate  formed  in  the  last  section  of  the 
force  of  the  negative  provisions  in  question  is  a  correct  one, 
may  be  inferred  from  the  acts  and  expressed  opinions  of  the 
members  of  the  Federal  Convention,  in  relation  to  the  Articles 
of  Confederation,  in  which  a  similar  provision  relating  to 
amendments  was  contained.  By  the  13th  of  those  Articles,  it 
was  provided  that  no  alteration  should  at  any  time  be  made 
in  any  of  those  Articles,  "  unless  such  alteration  (should)  be 
agreed  to  in  a  Congress  of  the  United  States,  and  be  afterwards 
confirmed  by  the  legislature  of  every  State."  It  is  well  known 
that  the  Federal  Constitution  of  1787  was,  in  direct  violation  of 
that  Article,  confirmed,  not  by  the  legislature  of  each  State,  but 
by  Conventions  called  in  the  several  States.  It  was  provided, 
moreover,  in  that  Constitution,  in  palpable  contradiction  to  the 
same  Article,  that  that  instrument  should  go  into  operation  as 
to  the  ratifying  States,  when  they  should  comprise,  not  the 
whole  thirteen  States  constituting  the  Confederation,  but  nine 
States,  at  least.  In  fact,  the  new  Constitution  went  into  opera 
tion  on  the  4th  of  March,  1789,  when  only  eleven  States  had 
ratified  it,  North  Carolina  withholding  her  assent  until  the  21st 
of  November  following,  and  Rhode  Island,  until  the  29th  of 
May,  1790.  But,  the  point  to  be  noted  is,  that  while  the  Fed 
eral  Convention  acted,  in  the  particular  mentioned,  in  evident 
violation  of  the  existing  Constitution,  it  frankly  admitted  that 
fact,  and  excused  its  illegal  and  revolutionary  proceedings  upon 
the  ground  of  absolute  necessity.  Our  fathers  were  convinced 
of  two  things:  first,  that  the  salvation  of  the  United  States 
depended  on  the  substitution  of  a  firm  national  government  for 
the  loose  Confederation  then  existing ;  and,  secondly,  that  to 
attempt  to  effect  that  change  by  the  unanimous  action  of  the 
State  legislatures,  as  required  by  the  13th  Article  above  quoted, 
would  be  to  court  failure,  which  would  be  nearly  certain  ruin. 
Hence  the  Convention,  and  hence  its  irregular  provision  for 
securing  the  adoption  of  the  system  it  recommended.1  In  this 


i 


For  the  arguments  relating  to  this  subject  in  the  Convention,  by  which  the 
above  statements  are  confirmed,  see  Elliott's  Deb.,  Vol.  V.  pp.  352-356,  499-502, 
532-534. 


CAN   ANOTHER  MODE   BE  PURSUED?  523 

case,  then,  it  is  clear,  that  the  act  of  disregarding  the  provisions 
of  the  13th  of  the  Articles  of  Confederation,  was  done  confess 
edly  as  an  act  of  revolution,  and  not  as  an  act  within  the  legal 
competence  of  either  the  people  or  the  Convention,  under  the 
Constitution  then  in  force.  It  was  truly  a  revolutionary  act, 
happily,  indeed,  consummated  without  actual  force,  but  involv 
ing,  as  possible  elements  of  the  problem,  both  violence  and  blood 
shed,  should  they  be  needed  to  make  the  revolution  effectual. 

§  566.  There  are  certain  cases,  however,  in  which  amend 
ments  have  been  effected  in  spite  of  such  negative  provisions, 
where  attempts  have  been  made  to  justify  them  on  legal 
grounds.  One  of  the  most  notable  of  these  occurred  in  Dela 
ware,  in  1791-2.  The  first  Constitution  of  Delaware,  Article 
XXX.,  was  as  follows :  — 

"  No  article  of  the  Declaration  of  Rights  and  Fundamental 
Rules  of  this  State,  agreed  to  by  this  Convention,"  (that  of 
1776,)  "  nor  the  first,  second,  fifth  (except  that  part  thereof  that 
relates  to  the  right  of  suffrage),  twenty-sixth,  and  twenty-ninth 
articles  of  this  Constitution,  ought  ever  to  be  violated  on  any 
pretence  whatever ;  no  other  part  of  this  Constitution  shall  be 
altered,  changed,  or  diminished,  without  the  consent  of  five  parts 
in  seven  of  the  Assembly,  and  seven  members  of  the  Legislative 

Council" 

As  the  Assembly  consisted  of  only  seven  Representatives, 
and  the  Legislative  Council  of  only  nine  members,  this  provis 
ion  required,  to  amend  the  Constitution  in  those  parts  which 
were  made  liable  to  amendment,  five-sevenths  of  the  one,  and 
seven-ninths  of  the  other,  and  the  amendments  were  to  be 
effected  through  the  agency  only  of  the  legislative  branch. 
Nevertheless,  in  1791,  the  legislature  passed  an  Act  calling  a 
Convention  to  revise  and  amend  the  Constitution.  Accordingly, 
a  Convention  was  elected,  assembled  in  1792,  and  framed  the 
second  Constitution  of  the  State. 

Similar  action  was  taken  in  1850  in  the  State  of  Maryland. 
The  Constitution  of  1776,  then  in  force,  Sec.  59,  provided  that 
neither  the  Form  of  Government  nor  the  Bill  of  Rights,  nor  any 
part  thereof,  should  be  altered,  changed,  or  abolished,  "  unless  a 
bill  so  to  alter,  change,  or  abolish  the  same  should  pass  the  Gen 
eral  Assembly,  and  be  published  at  least  three  months  before  a 
new  election,"  &c. 


524      IF   THE   CONSTITUTION   PROVIDES   ONE   MODE   OF   AMENDMENT, 

After  violent  contests  between  the  friends  and  enemies  of  a 
reform  of  the  State  Constitution,  an  Act  was  finally  passed  in 
1350,  in  direct  violation  of  this  provision  of  that  instrument, 
to  call  a  Convention,  the  result  of  which  was  the  election  of 
such  a  body,  and  the  adoption  by  it  of  the  Constitution  of 
1851. 

§  567.  Attempts,  as  I  have  said,  have  been  made  to  defend 
this  action  of  the  States  of  Delaware  and  Maryland,  on  legal 
grounds.  In  the  case  of  Delaware,  the  legality  of  the  course 
pursued  was  distinctly  asserted  by  Mr.  Bayard,  the  Senator  from 
that  State,  in  a  speech  delivered  in  the  Senate  of  the  United 
States,  in  1858,  upon  the  Lecompton  Constitution.  As  one 
reason  why  it  would  not  be  unjust  to  force  that  Constitution 
upon  the  people  of  Kansas  against  their  will,  he  affirmed,  that 
it  would  be  in  their  power  at  any  time  to  amend  it,  should  it 
prove  distasteful  to  them,  notwithstanding  positive  provisions 
were  contained  in  it  forbidding  amendments  for  a  fixed  period  ; 
and,  to  establish  that  position,  he  referred  to  the  action  of  his 
own  State  in  1792 ;  the  broad  principle  being  asserted  by  him, 
that  a  majority  of  a  people  could  not  be  restrained  by  constitu 
tional  inhibitions  from  changing  their  fundamental  law  when 
and  as  they  pleased.  The  reasoning,  in  brief,  by  which  this  re 
markable  proposition  was  sustained,  was  comprised  in  these 
political  axioms,  resulting,  as  he  claimed,  "from  the  nature  of 
man  : "  first,  that  all  powers  of  government  rest  ultimately  in 
the  people  at  large;  secondly,  that  a  majority  of  those  who 
choose  to  act  may  organize  a  government;  and,  thirdly,  that  the 
right  to  change  is  included  in  the  right  to  organize,  and  may 
in  like  manner  be  exercised  at  any  time  by  a  majority.  Accord 
ing  to  these  principles,  as  the  Senator  affirmed,  "the  right  of 
a  majority  to  organize  a  government,  under  the  law  of  the 
social  compact,  precludes  any  power  in  that  majority  to  render 
the  government  they  form  unalterable,  either  for  twenty  or  ten 
years,  or  for  one  year ;  because  such  a  restriction  is  inconsistent 
with  their  own  authority  to  form  a  government,  and  at  war 
with  the  very  axiom  from  which  their  own  power  to  act  is 
derived."1 

§  568.  So,  in  reference  to  the  Maryland  case,  the  Hon.  Rev- 
erdy  Johnson,  United  States  Senator  from  that  State,  in  a  late 
l  Appendix  to  Vol.  XXXVII.  of  the  Congressional  Globe,  p.  188. 


CAN   ANOTHER   MODE   BE   PURSUED?  525 

letter  respecting  certain  proceedings  of  the  Maryland  Conven 
tion  of  1864,  said  :  — 

"  No  man  denies  that  the  American  principle  is  well  settled, 
that  all  governments  originate  with  the  people,  and  may  by  like 
authority  be  abolished  or  modified ;  and  that  it  is  not  within  the 
power  of  the  people,  even  for  themselves,  to  surrender  this  right, 
much  less  to  surrender  it  for  those  who  are  to  succeed  them. 
A  provision,  therefore,  in  the  Constitution  of  any  one  of  the 
United  States,  limiting  the  right  of  the  people  to  abolish  or 
modify  it,  would  be  simply  void.  And  it  was  upon  this  ground 
alone  that  our  Constitution  of  '76  was  superseded  by  that  of 

'51 The   Constitution  of  1851,  therefore,  rests  on  the 

inherent  and  inalienable  American  principle,  that  every  people 
have  a  right  to  change  their  government."  Subsequently,  re 
ferring  to  this  principle,  he  says  :  "  In  its  nature  it  is  revolution 
ary,  but,  notwithstanding  that,  it  is  a  legal  principle."  l 

§  569.  Two  points  involved  in  these  extracts  deserve  consid 
eration. 

1.  The  right  is  claimed  for  the  people  to  establish  and  to 
change  their  governments  at  pleasure  —  a  right  which  cannot  in 
general  be  denied.  But  who  are  the  people  ?  In  the  true  sense 
of  the  term,  it  means  the  political  society  considered  as  a  unit, 
comprising  in  one  organization  the  entire  population  of  the 
State,  of  all  ages,  sexes,  and  conditions.  Unquestionably,  it  is 
the  right  of  the  people  in  this  sense  to  found  its  institutions,  and 
to  determine  how  they  shall  and  how  they  shall  not  be  abolished 
or  amended.  Having  ordained  the  mode,  however,  in  which 
changes  therein  may,  and  in  which  they  shall  not,  be  made, 
clearly  no  mode  can  be  legal  which  contravenes  the  express  let 
ter  of  that  fundamental  provision.  The  society  has,  it  is  true, 
the  physical  power  to  override  its  own  restrictions.  But  such 
an  act  would  most  certainly  be  illegal,  because  in  violation  of 
the  letter  of  the  law.  Even  were  the  whole  people,  by  unani 
mous  action,  to  effect  organic  changes  in  modes  forbidden  by 
the  existing  organic  law,  it  would  be  an  act  of  revolution. 

2.  That  whatever  the  people  are  authorized  to  do,  a  majority 
of  them  may  do,  is  generally  true  —  by  the  term  majority  mean 
ing  the  greater  number.  But  it  is  important  to  determine  the 

i  Letter  to  William  D.  Bowie  and  others,  dated  Oct.  7,  1864,  published  in 
the  N.  Y.  Daily  Tribune  of  June  5,  1865. 


526      IF  THE   CONSTITUTION   PROVIDES  ONE   MODE  OF    AMENDMENT, 

stage  at  which  that  proposition  holds  good.      Nature  knows 
nothing  of  any  majority  but  that  of  force.     Anterior,  then,  to 
any  positive  institutions,  and  this  side  an  appeal  to  force,  noth 
ing  less  than  the  whole   can  rightfully  bind  the  whole.     It  is 
only  when  a  political  society,  with  positive  laws  and  compacts, 
has  been  established,  that  the  whole  can  be  bound  by  the  action 
of  a  number  less  than  the  whole ;  and  the   number  to  which 
shall  be  accorded  the  power  to  act  for  the  whole,  and  the  condi 
tions  under  which  it  may  so  act,  are  matters  of  positive  regula 
tion,  in  which  alone  they  find  their  warrant.     From  this  it  is 
apparent,  that  a  mere  majority  in  number  of  all  the  citizens  of 
a  State,  or  of  the  electors  of  a  State,  have  no  right  whatever  to 
act  for  the  whole   State,  unless  they  can   point  to  authority  to 
that  effect,  express  or  implied,  in  the  Constitution  of  the  State; 
and  that  if  the  action  taken   or  proposed  by  such  majority  is 
palpably  in  the  teeth  of  a  constitutional  provision,  it  is  usurping 
and  revolutionary.     This,  it  will  have  been  observed,  was  ad 
mitted  by  Senator  Johnson  in  the  extract  given  above,  although, 
it  is  true,  that  eminent  lawyer  gave  utterance  to  the  astounding 
paradox,  that  the  action  of  the   Maryland  Convention  was   at 
once  revolutionary  and  legal — a  contradiction,  which  we  have 
a  right  not  to  expect  from  a  man  occupying  the  high  position 
of  a  Senator  of  the  United   States,  not  to  say,  of  the  foremost 
lawyer  of  the  Union. 

§  570.  Whether  or  not  the  acts  thus  pronounced  to  be  revolu 
tionary  were  necessary  or  excusable,  that  is,  on  the  whole  expe 
dient,  even  at  the  price  of  revolution,  is  a  different  question, 
which  I  do  not  decide.  But  that  they  were  revolutionary  is 
inferable  from  the  preamble  of  the  Act  of  the  Delaware  legisla 
ture  calling  the  Convention  of  1792,  setting  forth  the  grounds 
upon  which  it  took  that  step.  It  did  not  pretend  to  have  a  legal 
right  to  call  a  Convention,  but  affirmed  that  it  was  expedient  so 
to  do.  Its  language  was  as  follows  :  "  By  the  thirtieth  article 
of  the  Constitution  of  this  State,  the  power  of  revising  the 
same,  and  of  altering  and  amending  certain  parts  thereof,  is 
vested  in  the  General  Assembly ;  and  it  appears  to  this  house 
that  the  exercise  of  the  power  of  altering  and  amending  the 
Constitution  by  the  legislature  would  not  be  productive  of  all 
the  valuable  purposes  intended  by  a  revision,  nor  be  so  satisfac 
tory  and  agreeable  to  our  constituents;  and  that  it  would  be 


CAN  ANOTHER  MODE  BE  PURSUED?  527 

more  proper  and  expedient  to  recommend  to  the  good  people  of 
the  State  to  choose  deputies  for  this  special  purpose  to  meet  in 
Convention." 

There  can  be  little  doubt  that  this  was  true,  and  that  the 
framers  of  the  Constitution  of  1776  acted  indiscreetly  in  limit 
ing  amendments,  in  negative  terms,  to  the  General  Assembly, 
and  thereby,  by  irresistible  inference,  inhibiting  the  call  of  a 
Convention.  But  the  real  question  was  not,  is  it  expedient  that 
the  Constitution  be  revised  by  a  Convention,  but  can  a  Conven 
tion  be  called  for  that  purpose,  in  the  face  of  the  provision,  that 
no  part  of  the  Constitution  (with  certain  exceptions  not  to  the 
purpose  here)  should  be  "  altered,  changed,  or  diminished,  with 
out  the  consent  of  five  parts  in  seven  of  the  Assembly,  and 
seven  members  of  the  Legislative  Council-?  "  This  latter  ques 
tion  the  legislature  itself  answered  implicitly  in  the  negative, 
when  it  premised  that  the  power  of  revising  the  Constitution 
and  of  altering  and  amending  certain  parts  thereof  was  "  vested 
in  the  General  Assembly." 

§  571.  2.  The  second  case  is  that  in  which  the  terms  of  the 
constitutional  provisions  relating  to  amendments  are  permissive 
merely,  without  words  restricting  them  to  prescribed  modes. 

In  this  case,  upon  authority  certainly,  and  I  think  also  upon 
principle,  it  is  competent  for  the  people,  at  the  instance  and 
through  the  ministry  of  the  existing  government,  to  amend  their 
Constitution  either  in  the  mode  presented  or  in  such  other  mode 
as  custom  may  have  sanctioned,  and  as  sound  statesmanship 
may,  under  all  the  circumstances,  approve.  In  my  judgment, 
however,  to  render  such  action  safe,  or,  consequently,  legitimate, 
both  these  conditions  should  concur. 

Looking  first  at  the  precedents,  it  has  been  seen  in  a  former 
chapter,  that  several  instances  have  occurred  in  which  Conven 
tions  have  been  called  by  the  legislatures  of  States  under  the 
circumstances  indicated.  In  those  cases,  constitutional  provis 
ions  permitting  amendments  to  be  made  in  a  particular  manner 
or  at  a  fixed  time,  through  the  agency  of  the  legislative  branch, 
had  been  found  or  fancied  to  be  inadequate,  because  they  either 
required  to  effect  that  object  too  large  a  majority  of  that  branch 
or  of  the  people,  or  authorized  them  to  be  made  at  a  time  too 
remote,  so  that  the  practical  consequence  was  a  closing  of  all 
legal  avenues  to  change.  Seeing  no  alternative  to  a  resort  to 


528      IP   THE   CONSTITUTION   PROVIDES   ONE   MODE   OF   AMENDMENT, 

force  but  the  calling  of  a  Convention,  under  the  sanction  of  law, 
that  course  has  by  preference  been  pursued,  not  always  without 
doubt  or  protest,  though  generally  with  the  consent  of  the  wise, 
to  which  time  has  commonly  added  the  acquiescence  of  all.  It 
is  unnecessary  to  do  more  than  merely  to  state  that  Conventions 
have  been  thus  called  in  some  of  the  most  important  States  in 
the  Union.  Amongst  these  were  the  Conventions  of  New  York, 
1846,  Louisiana,  1852,  Massachusetts,  1853,  and  Missouri,  1845 
and  1861. 

§  572.  In  respect  to  the  legitimacy  of  those  Conventions,  as 
has  been  observed,  it  is  now  too  late  to  raise  a  question.  They 
have  the  sanction  of  long  and  general  approval,  and  were  there 
greater  doubt  than  exists  as  to  their  regularity  or  validity,  the 
necessities  out  of  which  they  sprung,  and  the  evils  from  which 
their  labors  have  from  time  to  time  rescued  our  States,  would 
vindicate  their  claim  to  be  recognized  as  lawful  assemblies. 
The  seventy  odd  years  of  our  constitutional  history,  indeed, 
have  rendered  it  quite  clear  that  it  would  have  been  wise  in  our 
earlier  Constitutions  to  forestall  doubt,  by  expressly  providing, 
as  is  very  commonly  done  in  those  framed  in  our  day,  that  it 
should  be  competent  for  our  legislatures  to  call  Conventions,  not 
only  at  times  definitely  fixed,  but  whenever  it  should  seem  to 
them  advisable  so  to  do.  In  popular  governments,  it  is  the  part 
of  wisdom  to  recognize  the  fact,  that  what  the  people  strongly 
desire  they  are  likely  in  some  manner  to  effect.  If  the  attain 
ment  of  their  purposes  by  legal  means  be  rendered  too  difficult, 
they  will  probably  resort  to  such  as  are  illegal.  Having  a  right, 
within  the  limits  imposed  by  the  moral  law,  and,  in  the  States, 
by  the  Federal  Constitution,  to  do  whatever  they  please,  restric 
tions  should  have  for  their  object  mainly  to  make  it  certain  that 
it  is  the  people  who  speak,  and  that  the  language  uttered  by 
them  is  the  expression  of  their  matured  opinions. 

§  573.  Viewed  upon  principle,  the  question  I  am  considering 
turns  mainly  on  the  applicability  of  the  legal  maxim,  expres- 
sio  unius  est  exclusio  alterim,  to  the  construction  of  constitu 
tional  instruments.  Were  there  no  authority  upon  the  point,  it- 
would  be  doubtful  whether,  in  dealing  with  great  questions  of 
politics  and  government,  the  same  maxim  ought  to  prevail 
which  regulates  the  construction  of  contracts  between  man  and 
man.  As  a  matter  of  speculation,  it  may  be  admitted  that  that 


CAN    ANOTHER   MODE   BE   PURSUED  ?  529 

maxim  expresses  the  weight  of  probability  equally  in  cases  of 
great  and  of  small  magnitude.  But  there  is  always  a  doubt ; 
and  between  the  cases  indicated  there  is  this  wide  difference, 
that  in  ordinary  contracts,  it  is  possible  to  enforce  the  construc 
tion  which  our  courts  shall  pronounce  the  true  one  ;  whilst  in 
the  case  of  constitutional  provisions,  regulating  great  organic 
movements,  and  presenting  barriers  to  the  attainment  of  what 
the  people  generally  desire,  to  hold  such  a  maxim  applicable 
would  be,  in  many  cases,  to  make  that  revolutionary  which  per 
haps  was  not  so.  Where  the  intention  of  the  framers  of  the 
Constitution  is  doubtful,  the  people,  assuming  power  under  the 
broader  construction,  should  have  the  benefit  of  the  doubt ;  and 
that  all  the  more,  because,  in  opposition  to  them,  our  courts  are 
comparatively  powerless.  If  a  largely  preponderating  majority 
favored  a  change,  they  would,  as  above  said,  be  likely  to  effect 
it,  right  or  wrong.  It  is  infinitely  better  that,  where  no  prin 
ciple  is  violated,  a  Constitution  should  be  so  construed  as  to 
make  their  action  legal  rather  than  illegal. 

However  this  may  be,  it  has  been  ruled  by  high  judicial 
authority  that  the  maxim,  expressio  unius  est  exclusio  alterim, 
is  applicable,  as  I  have  contended,  rather  to  deeds  and  contracts 
between  private  individuals  than  to  the  provisions  of  a  Consti 
tution.1 

§  574.  On  the  other  hand,  it  must  be  admitted,  there  is  authority 
to  the  contrary  in  an  opinion  already  referred  to,  delivered  in 
1833,  by  the  judges  of  the  Supreme  Court  of  Massachusetts. 

The  Massachusetts  Constitution  of  1821  had  made  provision 
for  making  specific  amendments  to  that  instrument  through  the 
agency  of  the  legislature,  but  not  for  calling  a  Convention.  In 
1833,  the  question  being  before  the  legislature  of  submitting  to 
the  people  the  expediency  of  calling  a  Convention  to  alter  or 
amend  the  Constitution  in  some  particular  parts,  a  doubt  was 
raised  whether  it  was  competent  for  the  legislature  to  take  any 
steps  towards  calling  a  Convention,  inasmuch  as  the  Constitu 
tion  had  provided  another  mode  of  effecting  the  same  object 
The  following  question  was,  therefore,  submitted  to  the  judges 
of  the  Supreme  Court  :  2  —  "  Can  any  specific  and  partic- 

1  See  Barto  v.  Himrod,  4  Seld.  R.  483. 

2  Chapter  III.  Article  II.  of  the  Constitution,  provided  as  follows :  —  "  Each 
branch  of  the  legislature,  as  well  as  the  Governor  and  Council,  shall  have 

34 


530      IP  THE  CONSTITUTION   PROVIDES  ONE  MODE  OF  AMENDMENT, 

ular  amendment  or  amendments  to  the  Constitution  be  made  in 
any  other  manner  than  that  prescribed  in  the  ninth  Article  of 
the  amendments  adopted  in  1820  ?  " 

To  this  question  the  judges  replied,  that,  "  considering  that, 
previous  to  1820,  no  mode  was  provided  by  the  Constitution  for 
its  own  amendment,  that  no  other  power  for  that  purpose  than 
in  the  mode  alluded  to,  is  anywhere  given  in  the  Constitution, 
by  implication  or  otherwise,  and  that  the  mode  thereby  provided 
appears  manifestly  to  have  been  carefully  considered,  and  the 
power  of  altering  the  Constitution  thereby  conferred  to  have 
been  cautiously  restrained  and  guarded,  we  think  a  strong1  im 
plication  arises  against  the  existence  of  any  other  power,  under 
the  Constitution,  for  the  same  purposes."  l 

§  575.  Noting  that  the  judges  rest  their  opinion  merely  upon 
implication,  thus  substantially  deciding  that  the  maxim,  "  ex- 
pressio  unius  est  exclusio  alterius"  does  apply  to  the  construction 
of  Constitutions  as  well  as  to  deeds  and  other  contracts  between 
man  and  man,  I  shall  merely  add  that,  notwithstanding  that 
opinion,  a  Convention  was  called  in  1853,  under  the  same  Con 
stitution,  and  that  although  its  constitutionality  was  denied  by 
some  of  the  delegates,  it  was  most  ably  vindicated  by  the  fore 
most  legal  minds  in  the  body,  including  such  names  as  Choate, 
Parker,  and  Marcus  Morton,  —  the  latter,  one  of  the  judges 
who  rendered  the  opinion.  On  the  other  hand,  the  constitu 
tional  amendments  framed  by  the  Convention  of  1853  were  all 
rejected  by  the  people,  though  only  by  a  majority  of  about  4000 
in  a  vote  of  140,000.  Of  the  probable  grounds  for  this  adverse 
vote  I  am  not  advised  ;  and  in  the  absence  of  evidence  it  is  as 
fair  to  presume  it  arose  from  hostility  to  the  measures  as  from 
doubt  of  the  constitutional  validity  of  the  Convention. 

§  576.  Whether  the  principles  announced  in  the  last  five 
sections  are  applicable  to  the  case  of  amendments  to  the  Fed 
eral  Constitution,  admits  of  considerable  doubt.  The  fifth 
Article  of  that  Constitution  provides,  that  "  the  Cpngress,  when- 

authority  to  require  the  opinions  of  the  Justices  of  the  Supreme  Judicial  Court 
upon  important  questions  of  law,  and  upon  solemn  occasions." 

1  For  the  whole  opinion  of  the  judges,  see  Appendix  C,  post.  This  opinion, 
it  will  be  observed,  was  given  at  an  early  day  in  the  history  of  the  post-Rev 
olutionary  Conventions.  Precedents  have  since  then  established  a  different 
rule. 


CAN   ANOTHER  MODE  BE  PURSUED?  531 

ever  two-thirds  of  both  houses  shall  deem  it  necessary,  shall 
propose  amendments  to  this  Constitution  ;  or,  on  the  applica 
tion  of  the  legislatures  of  two-thirds  of  the  several  States,  shall 
call  a  Convention  for  proposing  amendments."  These  provis 
ions,  though  in  terms  imperative,  are  not  restrictive,  and,  there 
fore,  are  to  be  classed  with  the  variety  above  styled  permis 
sive,  as  contrasted  with  such  as  contain  negative  terms.  Judg 
ing  by  the  general  rule  of  construction  shown  to  obtain  in 
reference  to  Constitutions,  then,  it  would  seem  clear,  that  the 
national  legislature  might  call  a  Convention,  on  its  own  motion, 
by  the  action  of  a  majority  of  both  houses,  followed  by  the 
approval  of  the  President  of  the  United  States  —  the  constitu 
tional  provision  merely  requiring  that  it  shall  do  so  "on  the 
application  of  the  legislatures  of  two-thirds  of  the  several 
States,"  which  evidently  is  not  exclusive  of  other  cases. 

Without  entering  at  any  great  length  into  the  discussion  of 
this  question,  it  may  be  said,  in  opposition  to  the  view  just 
indicated,  that  there  is  a  difference  between  the  Federal  and 
State  Constitutions  in  respect  of  the  derivation  of  powers  by 
implication.  We  have  seen  that  Congress,  the  legislature  of 
the  Union,  possesses  only  such  powers  as  are  expressly  given  to 
it,  and  as  are  necessary  to  the  execution  of  its  express  powers ; 
while  the  legislatures  of  the  States  have  general  powers  of 
legislation,  save  where  restrictions  have  been  imposed.  Upon 
this  difference  is  founded  the  doubt  suggested  in  respect  to  the 
power  of  Congress  to  initiate  amendments  or  to  call  a  Conven 
tion,  under  conditions  varying  from  those  set  forth  in  the  fifth 
Article  of  the  Constitution.  The  provision,  that  in  a  contin 
gency  particularly  specified,  Congress  shall  call  a  Convention 
or  propose  amendments,  cannot,  perhaps,  without  a  reversal  of 
the  rule  of  construction  heretofore  applied  to  the  Federal  Con 
stitution,  be  held,  by  implication,  to  warrant  the  doing  of  either 
of  those  things  under  different  circumstances  or  conditions. 


APPENDIX. 


A. 

COMPLETE  LIST  OF  CONVENTIONS  HELD  IN  THE  UNITED  STATES. 

N.  B.  —  In  the  Remarks  appended  to  the  several  Conventions  in  this  list,  the  abbreviation 
"  Sub.,"  indicates  that  the  body  to  which  it  refers  submitted,  and  "  Not  sub.,"  that  it  did 
not  submit,  its  work  to  the  people  for  adoption  or  rejection. 

The  section-marks  refer  to  the  sections  ante,  where  the  Conventions  indicated  are  de 
scribed  or  referred  to.  The  Conventions  characterized  as  "Abortive"  agreed  upon  no 
Constitution  or  Amendments,  and  therefore  submitted  none  to  the  people. 


NAMES. 

DATE  OP  ASSEMBLING. 

DATE  OF  ADJOURN 
MENT. 

REMARKS. 

1.  Continental  Cong.  (2d) 

May  10,  1775. 

" 

March  1,  1781. 

This  body  not  properly 

a  Convention,  but  for 

convenience  classed  as 

such,  like  the  Revolu- 

tionarv  Conventions  in 

i 

general.    Sub.    §§  159 

-162,  502,  503. 

2.  New  Hampshire, 

Dec.  21,  1775. 

Jan.  5,  1776. 

Not  sub.     §  131. 

3. 

June  10,  1778. 

June  5,  1779. 

Sub.    §  132. 

4. 

2d  Tues.  June,  1781. 

Oct.  31,  1783. 

Sub.     §  132. 

5. 

1788. 

June  21,  1788. 

Called  to  ratify  the  Fed 

eral  Const.    §  167. 

6. 

September  7,  1791. 

Sept.  7,  1792. 

Sub.    §  219. 

7. 

November  6,  1850. 

April  17,  1851. 

Sub.    §§  217,  218.     The 

amendments  proposed 

at  the  first  session  in 

1850  were  rejected  by 

the  people.    Of  those 

proposed  at  the  second 

session    in    1851,    one 

only  was  adopted. 

8.  South  Carolina, 

1776. 

March  26,  1776. 

Not  sub.    §§  133,  134. 

9. 

January  5,  1777. 

March  19,  1778. 

Not  sub.     §§  135,  137, 

491. 

10.           " 

May  12,  1788. 

May  23,  1788. 

Called  to  ratify  the  Fed 

eral  Const.    §  167. 

11.           " 

1790. 

June  3,  1790. 

Not  sub.    §  219. 

12.           " 

December  17,  1860. 

Jan.  5,  1861. 

Not  sub.    Secession  Con 

vention.     §§  247-249. 

13. 

September  13,  1865. 

Sept.  29,  1865. 

Not  sub.   Reconstruction 

Conv.     §§  250-259. 

14.  Virginia. 
15.        3 

May  6,  1776. 
June  2,  1788. 

June  29,  1776. 
June  27,  1788. 

Not  sub.    §  138. 
Called  to  ratify  the  Fed 

eral  Const.    §  167. 

16. 

October  5,  1829. 

Jan.  15,  1830. 

Sub.     §§  219,  508,  509. 

17.        " 

October  14,  1850. 

Aug.  1,  1851. 

Sub.     §§  219,  508,  509. 

18. 

February  13,  1861. 

1861. 

Sub.    Secession  Conven 

j 

tion.     §§186,247-249. 

534 


APPENDIX. 
LIST  OF  CONVENTIONS,  (Continued.) 


NAMKS. 

DATE   OF  ASSEMBLING. 

DATE  OF  ADJOURN 
MENT. 

REMARKS. 

19.  Virginia, 

June  11,  1861. 

1861. 

Not  sub.   Reconstruction 

Conv.    §§  186,  187. 

20. 

February  13,  1864. 

April  11,  1864. 

Not  sub.  Reconstruction 

Convention.     §§   219, 

250-259. 

21.  New  Jersey, 

June  10,  1776. 

Aug.  21,  1776. 

Not  sub.    §§  139,  140. 

22. 

2d  Tues.  Dec.  1787. 

Dec.  18,  1787. 

Called  to  ratify  the  Fed 

eral  Const.    §  167. 

23.          " 

May  14,  1844. 

June  29,  1844. 

Sub.    §219. 

24.  New  York, 

July  9,  1776. 

Mav  8,  1777. 

Not  sub.    §§  150-152. 

25. 

June  17,  1788. 

July  26,  1788. 

Called  to  ratify  the  Fed 

eral  Const.  "  §  167. 

26.          " 

October  13,  1801. 

Oct.  27,  1801. 

Not  sub.    §§  219,  492. 

27.          " 

August  28,  1821. 

Nov.  10,  1821. 

Sub.    §  219. 

28.          " 

June  1,  1846. 

Oct.  9,  1846. 

Sub.    §  219. 

29.  Pennsylvania, 
30.            * 

July  15,  1776. 
November  10,  1783. 

Sept.  28,  1776. 
Sept.  25,  1784. 

Not  sub.    §§  143,  144. 
Council      of      Censors. 

Abortive.    §  220. 

31. 

November  20,  1787. 

Dec.  12,  1787. 

Called  to  ratify  the  Fed 

eral  Const.     §  167. 

32. 

November  24,  1789. 

Sept.  2,  1790. 

Not  sub.    §§   221,  222, 

225,  491. 

33. 

May  2,  1837. 

Feb.  22.  1838. 

Sub.    §  219. 

34.  Maryland, 

August  14,  1776. 
April  21,  1788. 

Nov.  11,  1776. 
April  28,  1788. 

Not  sub.     §  145. 
Called  to  ratify  the  Fed. 

Const.    §  167. 

36.          " 

November  4,  1850. 

May  14,  1851. 

Sub.     §§  224,  225. 

37.          " 

April  27,  1864. 

Sept.  6,  1864. 

Sub.    §§  217,  218,  509, 

note. 

38.  Delaware, 

August  27,  1776. 

Sept.  20,  1776. 

Not  sub.    §§  141,  142. 

39.        " 

1787. 

Dec.  7,  1787. 

Called  to  ratify  the  Fed 

eral  Const.    §  167. 

•40. 

1792. 

June  12,  1792. 

Not  sub.     §§  223,  225. 

41.        " 

November  8.  1831. 

Dec.  2,  1831. 

Not  sub.     §§  217,  218. 

42.        " 

1st  Tues.  Dec.  1852. 

April  30,  1853. 

Sub.    §§  217,  218. 

43.  Georgia, 

1st  Tues.  Oct.  1776. 

Feb.  5,  1777. 

Not  sub.     §  147. 

44. 

October  26,  1787. 

Jan.  2,  1788. 

Called  to  ratify  the  Fed 

eral  Const.    §  167. 

45. 

November  4,  1788. 

Nov.  24,  1788. 

Sub.     §§  148,  167. 

46. 

January  4,  1789. 

1789. 

Called  to  ratify  a  State 

Constitution.       P  r  o  - 

posed  amendments  to 

it  which  were  submit 

ted  to  the   next    fol 

lowing       Convention. 

§§  148,  149,  167,  219. 

47.        " 

May  4,  1789. 

1789. 

Called  to  ratify  a  State 

Constitution.     §§  148, 

149,  167,  219. 

48.        " 

May  2,  1795. 

May  6,  1795. 

Not  sub.  .§§  217,218. 

49.        " 
50.        " 

May  8,  1798. 
1st  Tues.  Mav,  1838. 

May  30,  1798. 
1838. 

Not  sub.     §§  217,  218. 
Sub.    §  219. 

51.        " 

January  9,  1861. 

March  23.  1861. 

^ot  sub.   Secession  Con 

vention.     §§  247-249. 

52.        " 

October  25,  1865. 

Nov.  8,  1865. 

\ot  sub.   Reconstruction 

Conv.     §§  250-259. 

53.  North  Carolina, 

November  12,  1776. 

Dec.  18,  1776. 

Not  sub.    §  146. 

54.            " 

July  21,  1788. 

Aug.  4,  1788. 

Called  to  ratify  the  Fed 

eral  Const.    §  167. 

55.           « 

1789. 

Nov.  21,  1789. 

Called  to  ratify  the  Fed 

eral  Const.     §  167. 

66.           " 

June  4,  1835. 

July  11,  1835. 

Sub.    §  219. 

APPENDIX. 
LIST  OF  CONVENTIONS,  (Continued.) 


535 


NAMES. 

DATE  OF  ASSEMBLINO. 

DATE  OF  ADJOURN 
MENT. 

REMARKS. 

57.  North  Carolina, 

May  20,  1861. 

1861. 

Not  sub.   Secession  Con 

vention.    §§  247-249. 

58.            " 

October  2,  1865. 

Oct.  19,  1865. 

Not  sub.   Reconstruction 

Convention.     §§   250- 

259.      May    24,   I860, 

Convention     reassem 

bled,     and     proposed 

amendments     to     the 

Constitution,       which 

were  submitted  to  the 

people     and    rejected. 
See  §  478,  note  1. 

59.  Vermont, 

July  2,  1777. 

Dec.  2,  1777. 

Not  sub.     §§    153,   154, 

171,  172. 

60. 

1st  Wed.  June,  1785. 

1st  Thurs.  Feb. 

Council  of  Censors.  Sub. 

1786. 

§§  155,  220. 

61.         " 

1st  Thurs.  June,  1786. 

1786. 

Called  to  ratify  a  State 

Constitution.*    §  220. 

62.         «' 

January  —  ,  1791. 

Jan.  10,  1791. 

Called  to  ratify  the  Fed 

eral  Const.    §  167. 

63.         " 

1792. 

179-. 

Council  of  Censors.  Sub. 

§  220. 

64.         " 

July  3,  1793. 

Called  to  ratify  a  State 

Constitution.     §  220. 

65.         " 

1799. 

Council       of      Censors. 

Abortive.     §  220. 

66.         " 

1806. 

Council      of      Censors. 

Abortive.     §  220. 

67.         " 

1813. 

Council      of      Censors. 

Abortive.    §  220. 

68.         " 

June  7,  1820. 

March  26,  1821. 

Council  of  Censors.  Sub. 

§  220. 

69.         " 

February  21,  1822. 

Feb.  23,  1822. 

Called  to  ratify  a  State 
Constitution.     §  220.  * 

70.         " 

June  6,  1827. 

Dec.  1,  1827. 

Council  of  Censors.   Sub. 

§  220. 

71.         " 

June  26,  1828. 

Called  to  ratify  a  State 

Constitution.     §  220. 

72.         " 

1834. 

June  15,  1835. 

Council  of  Censors.  Sub. 

§  220. 

73.         " 

January  6,  1836. 

Jan.  14,  1836. 

Called  to  ratify  a  State 
CoHstitution.     §  220. 

74.         " 

June  2,  1841. 

Feb.  15,  1842. 

Council  of  Censors.  Sub. 

§220. 

75.         " 

January  4,  1843. 

Jan.  12,  1843. 

Called  to  ratify  a  State 
Constitution.     §  220. 

76. 

June  7,  1848. 

Feb.  28,  1849. 

Council  of  Censors.    Sub. 

§  220. 

77.         " 

January  2,  1850. 

Jan.  14,  1850. 

Called  to  ratify  a  State 
Constitution.     §  220. 

78. 

June  6,  1855. 

Feb.  26,  1856. 

Council  of  Censors.  Sub. 

§  220. 

79. 

January  7,  1857. 

Jan.  12,  1857. 

Called  to  ratify  a  State 
Constitution.     §  220. 

80.         " 

June  4,  1862. 

Oct.  25,  1862. 

Council       of      Censors. 

Abortive.     §  220. 

81.  Massachusetts, 

Januarv,  1778. 

Feb.  28,  1778. 

Sub.  and  rejected.  §  156. 

82. 
83.             " 

September  1,  1779. 
January  9,  1788. 

June  16,  1780. 
Feb.  7,  1788. 

Sub.     §§  157,  158. 
Called  to  ratifv  the  Fed 

eral  Const.     §  167. 

84.             «« 

November  15,  1820. 

Jan.  9,  1821. 

Sub.    §219. 

85.             " 

November  4,  1853. 

Aug.  1,  1853.     1  Sub.  and  rejected.  §  219. 

536 


APPENDIX. 


LIST  OF  CONVENTIONS,  (Continued.) 


NAMES. 

DATE  OF  ASSEMBLING. 

DATE  OF  ADJOURN 
MENT. 

REMARKS. 

86.  Federal  Convention, 

May  14,  1787. 

Sept.  17,  1787. 

Sub.  §§  163-166,502,  503. 

87.  Connecticut, 

January  4,  1788. 

Jan.  9,  1788. 

Called  to  ratify  the  Fed 

eral  Const.    §  167. 

88. 

August  26,  1818. 

Sept.  16,  1818. 

Sub.    §  219. 

89.  Rhode  Island, 

1790. 

May  29,  1790. 

Called  to  ratify  the  Fed 

eral  Const.    §  167. 

90. 

1824. 

Sub.  and  rejected.  §  219. 

91.             " 

1834. 

Abortive.    §  219. 

92. 

October,  1841. 

1842. 

Sub.   §§  226-246.  "  Peo 

ple's  Convention." 

93. 

November,  1841. 

Feb.  1842. 

Sub.  and  rejected.  §  219. 

Convention  called  by 

the    Charter    govern 

ment. 

94.             " 

September,  1842. 

1842. 

Sub.     §§  219,  508,   509. 

Convention  called   by 

the    Charter    govern 

ment. 

95.  Kentucky. 

1st  Mond.  April,  1792. 

April  19,  1792. 

Sub.    §§  173,  174. 

96. 

July  22,  1799. 

Aug.  17,  1799. 

Not  sub.     §§  217,  218. 

97.          " 

October  1,  1849. 

June  11,  1850. 

Sub.    §  218. 

98.  Tennessee, 

January  11,  1796. 

Feb.  6,  1796. 

Sub.    §§  175-182. 

99. 

May  19,  1834. 

Aug.  30,  1834. 

Sub.    §§  217,  2*18,  509, 

ncte. 

100.        " 

1861. 

1861. 

Sub.       Secession     Con 

vention  —  the      State 

legislature.      §§    247- 

249. 

103, 

January  9,  1865. 

Jan.  13,  1865. 

Sub.         Reconstruction 

Convention.     S§  250- 

259. 

102.  Ohio, 

November  1,  1802. 

Nov.  29,  1802. 

Sub.    §§  195,  217,  218. 

103!      " 

May  6,  1850. 

March  10,  1851. 

Sub.    §§217,218. 

J04.  Louisiana, 

1st  Mond.  Nov.  1811. 

Jan.  22,  1812. 

Sub.    §  195. 

105.         " 

Aug.  5,  1844. 

May  16,  1845. 

Sub.    §§  217,  218. 

106.         " 

July  5,  1852. 

July  31,  1852. 

Sub.    §§  217,  218. 

107.         " 

January  23,  1861. 

March  7,  1861. 

Not  sub.   Secession  Con 

vention.     §§  247-249. 

108.         " 

April  6,  1864. 

July  25,  1864. 

Sub.          Reconstruction 

Convention.     §§   250- 

259.  Adjourned  at  the 

call    of  its    president. 

2d  session,  called  for 

July     30,     1866,     dis 

persed     by    a     mob. 

§§  473-478. 

309.  Indiana, 

2d  Mond.  June,  1816. 

June  29,  1816. 

Sub.    §  195. 

110.        " 

October  7,  1850. 

Feb.  10,  1851. 

Sub.    §  219. 

111.  Mississippi, 

1st  Mond.  July,  1817. 

Aug.  15,  1817. 

Sub.    §  195. 

112.           " 

September  10,  1832. 

Oct.  26,  1832. 

Not  sub.     §§  217,  218. 

113.           " 

January  7,  1861. 

1861. 

Not  sub.    Secession  Con 

114.          " 

August  14,  1865. 

Aug.  26,  1865. 

vention.     §§  247-249. 
Not  sub.    Reconstruction 

Convention.     §§  250- 

259. 

115.  Illinois, 

1st  Mond.  Aug.  1818. 

Aug.  26,  1818. 

Sub.     §  195. 

116.       " 

June  7,  1847. 

Aug.  31,  1847. 

Sub.     §§  217,  218. 

117.       " 

January  7,  1862. 

March  22,  1862. 

Sub.  and  rejected.  §§  217, 

218. 

118.  Alabama, 

July  5,  1819. 

Aug.  2,  1819. 

Sub.     §  195. 

119. 

January  7,  1861. 

March  20,  1861. 

Not  sub.    Secession  Con 

vention.    §§  247-249. 

APPENDIX. 
LIST  OF  CONVENTIONS,  (Continued.) 


537 


NAMES. 

DATE  OP  ASSEMBLING. 

DATKMEirOM"                *««»• 

120.  Alabama, 

September  12,  1865. 

Sept.  30,  1865. 

Not  sub.   Reconstruction 

Convention.      §§  250- 

259. 

121.  Maine, 

October  11,  1819. 

Oct.  29,  1819. 

Sub.    §§  183-185. 

122.  Missouri, 

June  12,  1820. 

Julv  19,  1820. 

Sub.     §  195. 

123. 

November  17,  1845. 

Jan.  14,  1846. 

Sub.     §  219. 

124.        " 

February  28,  1861. 

Julv  1,  1863. 

Not  sub.     §  219. 

125.        " 

Januarv  6,  1865. 

April  10,  1865. 

Sub.     §  219. 

126.  Michigan, 

May  11,  1835. 

June  24,  1835. 

Sub.     §§  196-209. 

127.        " 

September  26,  1836. 

1836. 

Called  to  ratify  a  State 

Constitution.     §§  167, 

196-209. 

128.        " 

December  14,  1836. 

Dec.  —  ,  1836. 

Called  to  ratify  a  State 

Constitution.'    §§   167, 

196-209. 

129.        " 

June  3,  1850. 

Aug.  15,  1850. 

Sub.     §§  217,  218. 

130.  Arkansas, 

January  4,  1836. 

Jan.  30,  1836. 

Sub.     §§  196,  197,  210. 

131.         " 

March  1,  1861. 

1861. 

Not  sub.   Secession  Con 

vention.     §§  247-249. 

132. 

January  8,  1864. 

1864. 

Not  sub.   Reconstruction 

Convention.    §§   250- 

259. 

133.  Florida, 

December  3,  1838. 

Jan.  11,  1839. 

Sub.     §§  196,  197,  210. 

134.        " 

January  3,  1861. 

1861. 

Not  sub.    Secession  Con 

vention.     §§  247-249. 

135. 

October  25,  1865. 

Nov.  13,  1865. 

Not  sub.    Reconstruction 

Convention.     §§  250- 

259. 

136.  Iowa, 

October  7,  1844. 

Nov.  1,  1844. 

Sub.     §§  196,  197,  210. 

137.      " 

1846. 

May  18,  1846. 

Called  to  ratify  a  State 

Constitution.     §§    167, 

» 

196. 

138.      " 

Januarv  19,  1857. 

March  5,  1857. 

Sub.    §§  217,  218. 

139.  Texas, 

1845. 

Aug.  27.  1845. 

Sub.     §  195. 

140.       " 

January  28,  1861. 

1861. 

Sub.    Secession  Conven 

tion.     §§  247-249. 

141.       " 

March,  1866. 

April  2,  1866. 

Reconstruction    Conven 

tion.     §§  250-259. 

142.  Wisconsin, 

October  5,  1846. 

Dec.  16,  1846. 

Sub.  and  rejected.   §195, 

210. 

143. 

December  15,  1847. 

Feb.  1,  1848. 

Sub.     §§  106,  210. 

144.  California, 

September  1,  1849. 

Oct.  13,  1849. 

Sub.     §§  196,  197,  210. 

145.  Kansas, 

October  23,  1855. 

1855. 

Sub.     §§  196,  197,  211, 
212.     Topeka  Conven 

tion. 

146.        " 

September  5,  1857. 

Nov.  7,  1857. 

Sub.      §§   196,   213-216. 
Lecompton  Convention. 

147.        " 

July  5,  1859. 

July  29,  1859. 

Sub.     §§  195,  216.    Wy- 

andotte  Convention." 

148.  Minnesota, 

July  13,  1857. 

Aug.  29,  1857. 

Sub.     §  195. 

149.  Oregon, 
150.  West  Virginia, 

August  17,  1857. 
November  26,  1861. 

Sept.  18,  1857. 
Feb.  19,  1863. 

Sub.     §§  196,  210 
Sub.      §§   167,   186-193, 
508,  509. 

151.  Nevada, 

1863. 

Sub.        and       rejected. 

5§  196,  197,  210. 

152.        " 

1st  Mond.  Julv,  1864 

1864.       Sub.     §§  195,  197,  210. 

538  APPENDIX. 


B. 

Ax  the  extra  session  of  the  New  York  legislature,  in  November,  1820,  a  bill 
passed  both  houses,  by  the  provisions  of  which  a  Convention  was  to  be  called, 
without  referring  the  question  to  the  people  in  the  first  instance.  Delegates 
were  to  be  chosen  in  February,  1821,  and  the  Convention  was  to  assemble  in 
June  following.  This  bill  was  sent  to  the  Council  of  Revision,  who  returned  it 
with  the  following  objections,  drawn  up  by  Chancellor  Kent,  and  concurred  in 
by  his  Excellency  Governor  Clinton,  and  Chief  Justice  Spencer,  and  dissented 
from  by  Justices  Yates  and  Woodworth,  —  Justices  Van  Ness  and  Platt  being 

absent. 

IN  ASSEMBLY,  November  20,  1820. 

Objections  of  the  Council  to  the  bill  calling  a  Convention.  In  Council  of  Re 
vision,  November  20,  1820,— 

Resolved,  That  it  appears  improper  to  the  Council  that  the  bill,  entitled 
"  An  Act  recommending  a  Convention  of  the  people  of  this  State,"  should  be 
come  a  law  of  this  State. 

1.  Because  the  bill  recommends  to  the  citizens  of  this  State  to  choose  by  bal 
lot,  on  the  second  Tuesday  of  February  next,  delegates  to  meet  in  Convention, 
for  the  purpose  of  making  such  alterations  in  the  Constitution  of  this  State  as 
they  may  deem  proper,  without  having  first  taken  the  sense  of  the  people 
whether  such  a  Convention,  for  such  a  general  and  unlimited  revisal  and  altera 
tion  of  the  Constitution,  be,  in  their  judgment,  necessary  and  expedient. 

There  can  be  no  doubt  of  the  great  and  fundamental  truth,  that  all  free  gov 
ernments  are  founded  on  the  authority  of  the  people  ;  and  that  they  have  at  all 
times  an  indefeasible  right  to  alter  or  reform  the  same,  as  to  their  wisdom  shall 
seem  meet.  The  Constitution  is  the  will  of  the  people,  expressed  in  their  origi 
nal  character  and  intended  for  the  permanent  protection  and  happiness  of  them 
and  their  posterity ;  and  it  is  perfectly  consonant  to  the  republican  theory  and 
to  the  declared  sense  and  practice  of  this  country  that  it  cannot  be  altered  or 
changed,  in  any  degree,  without  the  expression  of  the  same  original  will.  It  is 
worthy,  therefore,  of  great  consideration,  and  may  well  be  doubted,  whether  it 
belongs  to  the  ordinary  legislature,  chosen  only  to  make  laws  in  pursuance  of 
the  provisions  of  the  existing  Constitution,  to  call  a  Convention  in  the  first  in 
stance,  to  revise,  alter,  and  perhaps  remodel  the  whole  fabric  of  the  govern 
ment,  and  before  they  have  received  a  legitimate  and  full  expression  of  the  will 
of  the  people  that  such  changes  should  be  made. 

The  difficulty  of  acceding  to  such  a  measure  of  reform,  without  the  previous 
approbation  of  the  constituents  of  the  government,  presses  with  peculiar  force 
and  with  painful  anxiety  upon  the  Council  of  Revision,  which  was  instituted  for 
the  express  purpose  of  guarding  the  Constitution  against  the  passage  of  laws  "  in 
consistent  with  its  spirit." 

The  Constitution  of  this  State  has  been  in  operation  upwards  of  forty  years, 
and  we  have  but  one  precedent  on  this  subject,  and  that  is  the  case  of  the  Con 
vention  of  1801.  But  it  is  to  be  observed  that  the  Convention  in  that  year 
was  called  for  two  specific  objects  only,  and  with  no  other  power  or  authority 
whatsoever.  One  of  these  objects  was  merely  to  determine  the  true  construe- 


APPENDIX.  539 

tion  of  one  of  its  articles,  and  was  not  intended  to  alter  or  amend  it ;  and  the 
other  was  to  reduce  and  limit  the  number  of  the  Senators  and  Members  of  As 
sembly.  The  last  was  the  single  alteration  proposed  ;  and  perhaps,  even  with 
respect  to  tkat  point,  it  would  have  been  more  advisable  that  the  previous  sense 
of  the  people  should  have  been  taken.  But  there  is  no  analogy  between  this 
single  and  cautious  case  and  the  measure  recommended  by  the  present  bill, 
which  is  not  confined  to  any  specific  object  of  alteration  or  revisal,  but  submits 
the  whole  constitutional  charter  with  all  its  powers  and  provisions,  however  ven 
erable  they  may  have  become  by  time  and  valuable  by  experience,  to  unlimited 
revisal.  The  Council  have  no  evidence  before  them,  nor  does  any  legitimate 
and  authentic  evidence  exist,  that  the  people  of  this  State  think  it  either  wise 
or  expedient  that  the  entire  Constitution  should  be  revised  and  probed,  and  per 
haps  disturbed  to  its  foundation. 

The  Council,  therefore,  think  it  the  most  wise  and  safe  course,  and  most  ac 
cordant  with  the  performance  of  the  great  trust  committed  to  the  representative 
powers  under  the  Constitution,  that  the  question  of  a  general  revision  of  it 
should  be  submitted  to  the  people  in  the  first  instance,  to  determine  whether  a 
Convention  ought  to  be  convened. 

The  declared  sense  of  the  American  people  throughout  the  United  States  on 
this  very  point  cannot  but  be  received  with  great  respect  and  reverence  ;  and 
it  appears  to  be  the  almost  universal  will  expressed  in  their  constitutional  char 
ters  that  Conventions  to  alter  the  Constitution  shall  not  be  called  at  the  instance 
of  the  legislature  without  the  previous  sanction  of  the  people  by  whom  those 
Constitutions  were  ordained. 

The  Constitution  of  Massachusetts  was  established  in  1780,  and  contains  the 
earliest  provision  on  this  subject.  It  provided  that,  in  the  year  1795,  the  sense 
of  the  people  should  be  taken  on  the  necessity  or  expediency  of  revising  the 
Constitution  ;  and  that  if  two-thirds  of  the  votes  of  the  people  were  in  favor  of 
such  revision  and  amendment,  the  legislature  should  provide  for  calling  a  Con 
vention.  The  Convention  now  sitting  in  that  State  was  called  in  consequence 
of  a  previous  submission  of  such  a  question  to  the  people.  The  Constitution  of 
South  Carolina  was  ordained  in  1790 ;  and  in  that  it  is  declared  that  no  Con 
vention  shall  be  called  unless  by  the  concurrence  of  two-thirds  of  both  branches 
of  the  legislature.  And  the  Constitution  of  Georgia,  established  in  1 798,  con 
tains  the°same  provision ;  thus  showing,  that  though  the  people  be  not  previously 
consulted  on  the  question,  yet  a  more  than  ordinary  caution  and  check  upon 
such  a  measure  was  indispensable.  The  Constitution  of  Delaware,  of  1792,  de 
clares  very  emphatically  that  no  Convention  shall  be  called  but  by  the  authority 
of  the  people,  and  that  their  sense  shall  be  taken  by  a  vote  for  or  against  a  Con 
vention  ;  and  that  if  a  majority  of  all  the  citizens  shall  have  voted  for  a  Con 
vention,  the  legislature  shall  make  provision  for  calling  one.  The  same  consti 
tutional  provision,  that  no  Convention  shall  be  called  to  alter  or  amend  the 
Constitution,  until  the  sense  of  the  people  by  vote  shall  have  been  previously 
taken,  whether,  in  their  opinion,  there  was  a  necessity  or  expediency  for  a  re 
vision  of  the  Constitution,  has  been  successfully  adopted,  by  the  Constitution  of 
New  Hampshire,  in  1792;  by  the  Constitution  of  Tennessee,  in  1796;  by  the 
Constitution  of  Kentucky,  in  1799;  by  the  Constitution  of  Louisiana,  in  1812  ; 
by  the  Constitution  of  Indiana,  in  1816  ;  by  the  Constitution  of  Mississippi,  in 
1817  ;  and  by  the  Constitution  of  Illinois,  in  1818. 


540  APPENDIX. 

It  would,  as  the  Council  apprehend,  be  impossible  to  produce  higher  and 
more  respectable  authority  in  favor  of  such  a  provision,  and  of  its  value  and 
safety. 

2.  Because  the  bill  contemplates  an  amended  Constitution,  to  be  submitted  to 
the  people  to  be  adopted  or  rejected,  in  toto,  without  prescribing  any  mode  by 
which  a  discrimination  may  be  made  between  such  provisions  as  shall  be  deemed 
salutary  and  such  as  shall  be  disapproved  by  the  judgments  of  the  people.  If 
the  people  are  competent  to  pass  upon  the  entire  amendments,  of  which  there 
can  be  no  doubt,  they  are  equally  competent  to  adopt  such  of  them  as  they  ap 
prove,  and  to  reject  such  as  they  disapprove ;  and  this  undoubted  right  of  the 
people  is  the  more  important  if  the  Convention  is  to  be  called  in  the  first  in 
stance  without  a  previous  consultation  of  the  pure  and  original  source  of  all  legi 
timate  authority.  And  it  is  worthy  of  consideration,  and  gives  additional  force 
to  the  expediency  and  fitness  of  a  previous  reference  to  the  people,  that  time 
will  be  thereby  given  for  more  mature  deliberation  upon  questions  arising  upon 
the  Constitution,  which  are  always  momentous  in  their  nature  and  calculated  to 
affect  not  the  present  generation  alone  but  their  distant  posterity,  and  when  the 
legislature  may  probably  have  it  in  their  power  to  avail  themselves  of  a  more 
just  and  accurate  apportionment  of  the  representation  in  the  Convention  among 
the  several  Counties  in  this  State. 

Ordered,  That  the  Secretary  deliver  the  bill,  together  with  a  copy  of  the  ob 
jections  aforesaid  to  the  Honorable  Assembly. 

J.  V.  N.  YATES, 

Secretary. 


c. 

OPINION  OF  THE  JUSTICES  OF  THE  SUPREME  JUDICIAL  COURT,  CONCERN 
ING  THE  ALTERING  OR  REVISING  OF  THE  CONSTITUTION  IN  ANY  SPE 
CIFIC  PART  THEREOF. 

[Taken  from  6   Gushing' s  Reports,  573.] 

THE  justices  of  the  Supreme  Judicial  Court  have  taken  into  consideration  the 
two  questions  submitted  to  them  (by  the  House  of  Representatives),  and  upon 
which  the  honorable  House  has  requested  their  opinion,  of  the  following  tenor, 
namely :  — 

First.  Whether,  if  the  legislature  should  submit  to  the  people  to  vote  upon 
the  expediency  of  having  a  Convention  of  delegates  of  the  people,  for  the  pur 
pose  of  revising  or  altering  the  Constitution  of  the  Commonwealth  in  any  speci 
fied  parts  of  the  same  ;  and  a  majority  of  the  people  voting  thereon,  should 
decide  in  favor  thereof,  could  such  Convention,  holden  in  pursuance  thereof,  act 
upon  and  propose  to  the  people  amendments  in  other  parts  of  the  Constitution 
not  so  specified  ? 

Second.  Can  any  specific  and  particular  amendment  or  amendments  to  the 
Constitution  be  made  in  any  other  manner  than  that  prescribed  in  the  ninth 
article  of  the  amendments  adopted  in  1820  ? 


APPENDIX.  541 

And  thereupon  have  the  honor  to  submit  the  following  opinion  : — 
The  court  do  not  understand  that  it  was  the  intention  of  the  House  of  Repre 
sentatives  to  request  their  opinion  upon  the  natural  right  of  the  people,  in  cases 
of  great  emergency,  or  upon  the»obvious  failure  of  their  existing  Constitution  to 
accomplish  the  objects  for  which  it  was  designed,  to  provide  for  the  amendment 
or  alteration  of  their  fundamental  laws ;  nor  what  would  be  the  effect  of  any 
change  or  alteration  of  their  Constitution,  made  under  such  circumstances  and 
sanctioned  by  the  assent  of  the  people.  Such  a  view  of  the  subject  would  in 
volve  the  general  question  of  natural  rights,  and  the  inherent  and  fundamental 
principles  upon  which  civil  society  is  founded,  rather  than  any  question  upon 
the  nature,  construction,  or  operation  of  the  existing  Constitution  of  the  Com 
monwealth,  and  the  laws  made  under  it.  We  presume,  therefore,  that  the  opin 
ion  requested  applies  to  the  existing  Constitution  and  laws  of  the  Common 
wealth,  and  the  rights  and  powers  derived  from  and  under  them.  Considering 
the  questions  in  this  light,  we  are  of  opinion,  taking  the  second  question  first, 
that,  under  and  pursuant  to  the  existing  Constitution,  there  is  no  authority  given 
by  any  reasonable  construction  or  necessary  implication,  by  which  any  specific 
and  particular  amendment  or  amendments  of  the  Constitution  can  be  made,  in 
any  other  manner  than  that  prescribed  in  the  ninth  article  of  the  amendments 
adopted  in  1820.  Considering  that,  previous  to  1820,  no  mode  was  provided  by 
the  Constitution  for  its  own  amendment,  that  no  other  power  for  that  purpose, 
than  in  the  mode  alluded  to,  is  anywhere  given  in  the  Constitution,  by  implica 
tion  or  otherwise,  and  that  the  mode  thereby  provided  appears  manifestly  to 
have  been  carefully  considered,  and  the  power  of  altering  the  Constitution 
thereby  conferred  to  have  been  cautiously  restrained  and  guarded,  we  think  a 
strong  implication  arises  against  the  existence  of  any  other  power,  under  the 
Constitution,  for  the  same  purposes. 

Upon  the  first  question,  considering  that  the  Constitution  has  vested  no  au 
thority  in  the  legislature,  in  its  ordinary  action  to  provide  by  law  for  submitting 
to  the  people  the  expediency  of  calling  a  Convention  of  delegates  for  the  pur 
pose  of  revising  or  altering  the  Constitution  of  the  Commonwealth,  it  is  difficult 
to  give  an  opinion  upon  the  question  what  would  be  the  power  of  such  a  Conven 
tion,  if  called.  If,  however,  the  people  should,  by  the  terms  of  their  vote,  de 
cide  to  call  a  Convention  of  delegates  to  consider  the  expediency  of  altering  the 
Constitution  in  some  particular  part  thereof,  we  are  of  opinion  that  such  dele 
gates  would  derive  their  whole  authority  and  commission  from  such  vote ;  and 
upon  the  general  principles  governing  the  delegation  of  power  and  authority, 
they  would  have  no  right,  under  such  vote,  to  act  upon  and  propose  amend 
ments  in  other  parts  of  the  Constitution  not  so  specified. 

LEMUEL   SHAW, 
SAMUEL  PUTNAM, 
S.  S.  WILDE, 
MARCUS  MORTON. 
January  24, 1833. 


542  APPENDIX. 


D. 

OPINION  OF  THE  JUDGES  OF  THE  SUPREME  COURT  OF  NEW  YORK,  TOUCH 
ING  THE  VALIDITY  OF  THE  ACT  OF  ASSEMBLY  PASSED  APRIL  22,  1846, 
MODIFYING  THE  CONVENTION  ACT  OF  MAY  13,  1845.1 

STATE  OF  NEW  YORK,       ) 
IN  ASSEMBLY,  April  10,  1846. ) 

Resolved,  That  the  bill  relating  to  the  apportionment  of  delegates  to  the  Con 
vention  be  referred  to  the  justices  of  the  Supreme  Court,  with  a  respectful  mes 
sage  from  the  Speaker  of  this  House,  requesting  them  to  communicate  forthwith 
to  this  House  whether,  in  their  opinion,  the  delegates  to  be  chosen  to  the  Con 
vention  under  the  law  of  the  last  session,  be  according  to  the  apportionment  of 
the  present  members  of  the  legislature,  and  whether  this  legislature  have  any 
power  to  alter  or  amend  that  law.  By  order  of  the  Assembly. 

A.  G.  CHATFIELD,  Speaker  pro  tern. 

The  justices  of  the  Supreme  Court  have  received  the  foregoing  resolution, 
with  the  bill  therein  mentioned,  and  have  considered  the  questions  on  which  their 
opinion  is  asked  by  the  Assembly. 

The  first  question  touches  the  construction  of  the  Convention  Act  of  1845  ; 
and  the  point  to  be  considered  is,  whether  the  number  of  delegates  to  be  chosen 
under  the  Act  in  the  several  counties,  is  to  be  regulated  by  the  apportionment 
of  members  of  Assembly  which  was  made  in  1836,  or  by  the  apportionment 
which  has  been  made  at  the  present  session  of  the  legislature. 

By  the  Constitution,  the  apportionment  of  members  of  Assembly  which  was 
made  in  the  spring  of  1836  took  effect  for  the  purpose  of  electing  the  members 
in  the  fall  of  that  year ;  but  it  did  not  take  effect  for  any  other  purpose  until 
the  1st  day  of  January,  1837  ;  and  it  was  to  remain  unaltered  for  ten  years.  In 
other  words,  the  representation  of  each  county  in  the  Assembly,  from  the  com 
mencement  of  the  political  and  calendar  year  1837  to  the  commencement  of  the 
political  and  calendar  year  1847,  was  to  remain  the  same. 

By  the  Convention  Act,  the  people  were  to  decide  upon  a  "  Convention  "  or 
"  no  Convention,"  at  the  fall  election  of  1845.  If  they  decided  for  a  Conven 
tion,  the  delegates  were  to  be  chosen  in  April,  1846  ;  they  were  to  assemble  in 
June  following ;  and  the  amendments  to  the  Constitution  on  which  the  Conven 
tion  might  agree  were  to  be  submitted  to  the  people  for  adoption  or  rejection,  at 
the  fall  election  of  the  same  year.  Every  thing  in  relation  to  the  Convention 
was  to  be  both  begun  and  concluded,  while  the  apportionment  of  members  of 
Assembly  made  in  1836  remained  in  force  and  governed  the  representation  from 
the  several  counties. 

The  seventh  section  of  the  Convention  Act  provides  that  "  the  number  of 
delegates  to  be  chosen  to  such  Convention  shall  be  the  same  as  the  number  of 
members  of  Assembly  from  the  respective  cities  and  counties  in  this  State."  We 

l  This  opinion  I  do  not  find  reported  in  any  of  the  New  York  Law  Reports,  probably  for 
the  reason  stated  in  the  text,  (§  393,  ante,)  that  there  was  no  constitutional  provision  au 
thorizing  such  a  reference  to  the  Supreme  Court,  and  the  opinion  was  therefore  deemed 
extra-judicial.  As  given  here,  it  is  taken  from  Deb.  Mass.  Conv.  1853,  Vol.  I.  p.  138. 


APPENDIX.  543 

are  of  opinion  that  this  means  the  number  of  members  from  the  respective 
counties,  under  the  apportionment  which  was  in  force  when  the  Act  of  1845  was 
passed,  and  which  will  be  in  force  until  after  the  delegates  have  been  chosen 
and  their  labors  have  been  terminated.  Although  a  new  apportionment  of 
members  of  Assembly  has  already  been  made,  it  cannot  take  effect  for  any  pur 
pose  until  the  fall  of  the  present  year.  If  an  election  for  members  of  Assem 
bly  in  any  county  for  the  present  year  were  now  to  be  ordered,  and  it  should  be 
held  at  the  same  time  that  the  delegates  to  the  Convention  are  to  be  chosen,  the 
apportionment  of  1836,  and  not  that  of  the  present  session,  would  govern.  The 
legislature  would  have  no  power  to  make  a  different  rule. 

It  would  have  been  highly  proper,  as  a  just  and  equitable  distribution  of  the 
delegates  among  the  several  counties,  and  the  legislature  of  1845  might  have 
so  provided,  that  the  new  census  and  apportionment  which  were  then  in  pros 
pect,  should  regulate  the  representation  in  the  Convention.  But  we  think  that 
has  not  been  done. 

It  will  be  seen,  on  referring  to  the  Assembly  documents  of  1845,  No.  211,  that 
the  select  committee  to  whom  the  Convention  bill  was  referred  gave  a  brief 
exposition  of  its  provisions,  in  which  they  said  that  "  each  county  is  entitled  to 
the  same  representation  it  now  has  in  the  Assembly."  And  so  far  as  this  ques 
tion  is  concerned,  the  bill  was  passed  in  the  same  words  in  which  it  was  reported 
to  the  House  by  the  committee.  It  is  difficult,  therefore,  to  suppose  that  the 
legislature,  in  passing  the  bill,  intended  any  other  rule  of  representation  than 
that  which  had  been  suggested  to  the  committee.  As  their  attention  was  plainly 
called  to  the  subject,  it  can  hardly  be  doubted  that  they  would  have  changed 
the  language  of  the  seventh  section  if  the  bill  was  passed  with  any  reference  to 
the  new  census  which  was  about  to  be  taken,  or  to  the  apportionment  which 
might  be  made  under  that  census. 

This  goes  to  confirm  the  construction  which  we  think  must  be  given  to  the 
Act,  when  looking  at  nothing  but  the  Statute  Book. 

The  next  question  is,  "  Whether  this  legislature  has  any  power  to  alter  or 
amend  that  law."  As  a  general  rule,  the  legislature  can  alter  or  annul  any  law 
which  it  has  power  to  pass.  A  proper  solution  of  the  question  proposed  by  the 
Assembly  involves,  therefore,  an  inquiry  concerning  the  source  from  which  the 
Act  of  1845  derives  its  obligation. 

The  legislature  is  not  supreme.  It  is  only  one  of  the  instruments  of  that  ab 
solute  sovereignty  which  resides  in  the  whole  body  of  the  people.  Like  other 
departments  of  the  government,  it  acts  under  a  delegation  of  powers,  and  can 
not  rightfully  go  beyond  the  limits  which  have  been  assigned  to  it.  This  dele- 
gatioiTof  powers  has  been  made  by  a  fundamental  law  which  no  one  depart 
ment  of  the  government  nor  all  the  departments  united  have  authority  to 
change.  That  can  only  be  done  by  the  people  themselves.  A  power  has  been 
given  to  the  legislature  to  propose  amendments  to  the  Constitution,  which, 
when  approved  and  ratified  by  the  people,  become  a  part  of  the  fundamental 
law.  But  no  power  has  been  delegated  to  the  legislature  to  call  a  Convention 
to  revise  the  Constitution.  That  is  a  measure  which  must  come  from,  and  be 
the  act  of,  the  people  themselves.  Neither  the  calling  of  a  Convention  nor  the 
Convention  itself  is  a  proceeding  under  the  Constitution.  It  is  above  and  beyond 
the  Constitution.  Instead  of  acting  under  the  forms  and  within  the  limits  pro- 


544  APPENDIX. 

scribed  by  that  instrument,  the  very  business  of  a  Convention  is  to  change  those 
forms  and  boundaries  as  the  public  interests  may  seem  to  require.  A  Convention 
is  not  a  government  measure,  but  a  movement  of  the  people,  having  for  its 
object  a  change,  either  in  whole  or  in  part,  of  the  existing  form  of  government. 

As  the  people  have  not  only  omitted  to  confer  any  power  on  the  legislature  to 
call  a  Convention  but  have  also  prescribed  another  mode  of  amending  the  or 
ganic  law,  we  are  unable  to  see  that  the  Act  of  1845  had  any  obligatory  force 
at  the  time  of  its  enactment.  It  could  only  operate  by  way  of  advice  or  recom 
mendation,  and  not  as  a  law.  It  amounted  to  nothing  more  than  a  proposition 
or  suggestion  to  the  people  to  decide  whether  they  would  or  would  not  have  a 
Convention.  That  question  the  people  have  settled  in  the  affirmative,  and  the 
law  derives  its  obligation  from  that  act  and  not  from  the  power  of  the  legisla 
ture  to  pass  it. 

The  people  have  not  only  decided  in  favor  of  a  Convention,  but  they  have 
determined  that  it  shall  be  held  in  accordance  with  the  provisions  of  the  Act  of 
1845.  No  other  proposition  was  before  them,  and  of  course  their  votes  could 
have  had  reference  to  nothing  else.  They  have  decided  on  the  time  and  man 
ner  of  electing  delegates  and  how  they  shall  be  apportioned  among  the  several 
counties. 

If  the  Act  of  the  last  session  is  not  a  law  of  the  legislature  but  a  law  made 
by  the  people  themselves,  the  conclusion  is  obvious  that  the  legislature  cannot 
annul  it  nor  make  any  substantial  change  in  its  provisions.  If  the  legislature 
can  alter  the  rule  of  representation  it  can  repeal  the  law  altogether,  and  thus 
defeat  a  measure  which  has  been  willed  by  a  higher  power. 

A  change  in  the  fundamental  law,  when  not  made  in  the  form  which  that  law 
has  prescribed,  must  always  be  a  work  of  the  utmost  delicacy.  Under  any 
other  form  of  government  than  our  own,  it  could  amount  to  nothing  less  than  a 
revolution.  The  greatest  care  should,  therefore,  be  taken  that  nothing  be  done 
which  can  give  rise  to  doubts  or  difficulties  in  the  choice  of  delegates  or  the  har 
monious  organization  and  action  of  the  Convention.  A  controversy  about  the 
number  of  delegates  to  which  any  county  is  entitled  may  lead  to  irregular  and 
disorderly  proceedings  at  the  election,  and  an  imperfect  expression  of  the  will 
of  the  electors  in  the  choice  of  delegates.  It  may  embarrass  the  inspectors  of 
elections  and  the  canvassers  of  votes.  It  may  also  tend  to  disorder  in  the 
Convention,  where  the  question  must  finally  be  settled  who  are  and  who  are  not 
members  of  the  body.  In  the  strife  of  parties,  if  there  should  be  parties  in  the 
Convention  and  they  should  be  nearly  balanced,  the  body  may  either  be  broken 
up  or  the  moral  force  of  its  acts  be  greatly  impaired.  As  a  question  of  expedi 
ency,  therefore,  as  well  as  of  power,  we  think  it  the  safest  course  to  leave  the 
law  as  it  now  is. 

If,  however,  the  Assembly  should  think  otherwise,  it  is  then  proper  that  we 
should  take  some  notice  of  the  bill  which  has  been  referred  for  our  considera 
tion. 

The  first  section  of  the  bill  is  in  the  following  words :  — 

"  Sec.  1.  The  true  intent  and  meaning  of  so  much  of  the  seventh  section  of 
an  Act,  entitled,  '  An  Act  recommending  a  Convention  of  the  people  of  this 
State,'  passed  May  13,  1845,  as  relates  to  the  number  of  delegates  to  be  chosen 
to  the  said  Convention  in  and  by  the  respective  cities  and  counties  of  this  State, 


APPENDIX.  545 

is,  that  the  number  of  delegates  to  be  chosen  to  the  said  Convention,  in  and  by 
the  said  cities  and  counties  respectively,  shall  be  the  same  as  the  number  of 
members  of  the  Assembly  which  the  said  cities  and  counties  will  respectively 
be  entitled  to  elect  according  to  the  census  of  the  inhabitants  of  this  State  taken 
in  the  year  1845." 

We  have  already  expressed  the  opinion  that  such  is  not  "  the  true  intent  and 
meaning  "  of  the  law.  It  is  proper  to  add  that,  as  the  section  merely  professes 
to  declare  what  the  law  now  is,  without  either  proposing  to  alter  it  or  command 
ing  any  thing  in  particular  to  be  done  or  omitted,  it  cannot  change  the  legal 
effect  of  the  existing  statute.  The  legislature  has  no  judicial  power.  Although 
its  opinions  are  entitled  to  great  consideration,  they  cannot  have  the  force  of  a 
law.  If,  therefore,  it  is  deemed  expedient  to  legislate  on  the  subject,  it  is  sub 
mitted  that  there  should  be  a  positive  enactment  instead  of  a  mere  declaration 
of  opinion. 

The  second  section  of  the  bill  goes  beyond  a  mere  declaration,  and  provides 
that  the  number  of  delegates  to  be  chosen  to  the  Convention  "  is  hereby  de 
clared  to  be  and  shall  be  as  follows,"  [specifying  the  number  to  be  elected  in 
each  county.]  The  words  "  shall  be  "  give  this  section  the  force  of  a  command , 
and,  if  the  section  should  be  enacted,  it  will  have  the  effect  of  altering  the  Con 
vention  law,  if  the  legislature  has  any  power  over  the  subject. 

The  two  remaining  sections  of  the  bill  call  for  no  remark. 

In  this  discussion  we  have  assumed,  without  intending  to  express  any  opinion 
on  the  subject,  that  the  Constitution  can  be  amended  in  a  different  way  from 
that  which  has  been  prescribed  by  the  people  in  the  instrument  itself. 

We  cannot  close  this  communication  without  expressing  our  regret  that 
questions  of  so  much  delicacy  and  importance  should  be  presented  under  cir 
cumstances  which  have  given  us  but  a  few  hours  for  conferring  together  and  re 
ducing  our  opinion  to  writing.  Neither  of  us  had  either  examined  or  thought 
of  the  questions  until  after  the  reference  was  made ;  and  it  was  not  until  this 
day  that  we  were  able  to  meet  and  consult  together  on  the  subject. 

Respectfully  submitted, 

GREENE   C.  BRONSON, 
SAMUEL  BEARDSLEY, 

ALBANY,  April  14, 1846.  F.  G.  JEWETT. 


THE  official  proceedings  culminating   in  the  reassembling  of  the  Louisiana 
Convention  of  1864  are  shown  by  the  following  documents:  — 


MINUTES  OF  THE  CAUCUS  OF  MEMBERS  OF  THE  LOUISIANA  CONVENTION 
OF  1864,  BY  WHICH  THE  PRESIDENT  OF  THAT  BODY  WAS  REMOVED,  AND 
A  PRESIDENT  PRO  TEM.  APPOINTED,  AS  PUBLISHED  BY  ITS  SECRETARY. 

NEW  ORLEANS,  June  26,  1866. 

In  pursuance  of  the  following  invitation,  a  meeting  of  members  of  the  Con 
stitutional  Convention  of  the  State  of  Louisiana,  was  held  at  the  State  House. 
35 


546  APPENDIX. 

NEW  ORLEANS,  June  23, 1866. 

SIR,  —  Several  members  of  the  Convention,  as  well  as  the  Executive,  request 
you  to  attend  a  meeting  of  the  members  of  the  Constitutional  Convention  of  the 
State  of  Louisiana,  at  the  Mechanics'  Institute,  New  Orleans,  on  Tuesday,  26th 
inst.,  at  2  o'clock,  P.  M.  JOHN  E.  NEELIS,  Secretary. 

On  motion  of  Mr.  Cutler,  Hon.  R.  K.  Howell  was  called  to  the  chair.  The 
roll  being  called,  the  following  members  responded  to  their  names,  viz. :  Messrs. 
Jno.  T.  Barrett,  Jos.  G.  Baum,  Robt.  B.  Bell,  Jos.  V.  Bofill,  J.  R.  Bromley,  Jno. 
Buckley,  Jr.,  Terrence  Cook,  Benj.  Campbell,  F.  M.  Crozat,  R.  King  Cutler, 
Jno.  L.  Davies,  .Tames  Duane,  W.  R.  Fish,  G.  H.  Flagg,  Edmond  Flood,  Louis 
Gastinel,  C.  H.  L.  Gruneberg,  Edward  Hart,  P.  Harnan,  J.  J.  Healy,  Jno.  Hen 
derson,  Jr.,  Wm.  H.  Hire,  R.  K.  Howell,  Geo.  Howes,  H.  Maas,  Robert  Morris, 
P.  K.  O'Conner,  John  Payne,  O.  H.  Poynot,  John  Purcell,  Alfred  Shaw,  Charles 
Smith,  C.  W.  Stauffer,  Jno.  A.  Spellicy,  Robert  W.  Taliaferro,  J.  Randall 
Terry,  W.  H.  Waters,  and  Ernest  J.  Week. 

On  motion  of  Hon.  R.  K.  Cutler,  Mr.  J.  K.  Belden,  having  had  his  creden 
tials  approved  by  the  Committee  on  Credentials  previous  to  the  adjournment  of 
the  Convention  in  1864,  was  admitted  to  a  seat  as  a  member  of  this  body. 

On  motion  of  Mr.  Fish,  Maj.  J.  H.  Andem  was  appointed  official  reporter. 

On  motion  of  Hon.  Chas.  Smith,  Mr.  Shelley  was  invited  to  a  seat  within  the 
bar. 

Mr.  Cutler  offered  the  following  preamble  and  resolutions :  — 

Whereas,  The  Constitutional  Convention  of  the  State  of  Louisiana,  when  it 
adjourned  in  1864,  adjourned  subject  to  call,  in  case  of  any  emergency  prior  to 
the  admission  of  this  State  into  the  Federal  Union ; 

Whereas,  The  Civil  Rights  Bill  has  become  a  law,  and  certain  amendments  to 
the  Constitution  of  the  United  States  have  passed  both  Houses  of  Congress,  and 
now  await  the  ratification  of  loyal  legislatures  of  the  several  States ; 

Whereas,  In  the  opinion  of  all  the  powers  of  the  General  Government,  of  the 
Executive  of  the  State  of  Louisiana,  of  all  the  members  of  said  Convention,  and 
of  all  the  loyal  citizens  of  the  State  of  Louisiana,  there  is  sufficient  cause,  and 
the  emergency  does  exist  for  the  reconvocation  and  action  of  said  Constitutional 
Convention ; 

Whereas,  His  Excellency,  the  Governor  of  the  State  of  Louisiana,  and  a 
large  number  of  the  members  of  said  Constitutional  Convention,  have  personally 
and  collectively,  and  at  divers  times  within  the  past  two  months,  waited  upon, 
conversed  with,  and  demanded  of  the  Hon.  E.  H.  Durell,  President  of  said 
Convention,  to  issue  his  proclamation  to  reconvoke  said  Convention,  or  resign 
his  position  and  office  of  president  of  said  body  ;  and 

Whereas,  The  said  E.  H.  Durell,  president  as  aforesaid,  did  continually  refuse, 
and  now  peremptorily  refuses,  to  either  issue  his  proclamation  to  reconvoke  said 
Convention,  or  to  resign  his  office  of  president  thereof; 

Be  it  therefore  Resolved,  That  the  said  E.  H.  Durell  is  no  longer  entitled  to 
the  confidence  of  the  members  of  the  Constitutional  Convention  of  Louisiana, 
or  of  the  loyal  people  of  the  State  of  Louisiana,  or  of  the  General  Govern 
ment. 

Be  it  therefore  Resolved,  That  the  office  of  President  of  the  Constitutional 


APPENDIX.  547 

Convention  of  the  State  of  Louisiana,  for  the  purposes  of  reconvoking  and 
properly  organizing  said  Convention  be,  and  the  same  is  hereby  declared 
vacant. 

Be  it  further  Resolved,  That  this  body  do  now  proceed  to  elect  a  president 
pro  tern,  of  the  Constitutional  Convention  of  Louisiana,  for  the  purpose  of  recon 
voking  and  permanently  organizing  for  action  said  Convention. 

For  the  foregoing,  Mr.  Smith  offered  the  following  substitute  :  — 

Resolved,  That  a  committee  of  five  members  —  including  the  president  of  this 
meeting  as  chairman  —  be  appointed  to  call  upon  Hon.  E.  H.  Durell,  President 
of  the  Constitutional  Convention  of  Louisiana,  and  request  him  to  issue  his 
official  call  for  its  reconvocation. 

On  motion  of  Mr.  Fish,  the  substitute  was  laid  on  the  table. 

Mr.  Smith  then  moved  that  a  committee  of  seven  members  be  appointed  to 
wait  on  Judge  Durell,  and  ascertain  his  views  relative  to  calling  the  Convention 
together,  and  report  within  one  hour. 

The  motion  was  adopted,  and  the  president  appointed  the  following  members 
to  compose  said  committee,  viz. :  — 

Messrs.  Smith,  Poynot,  Purcell,  Stauffer,  O'Conner,  Harnan,  and  Barrett. 

On  motion  of  Hon.  R.  K.  Cutler,  the  president  of  this  meeting  was  added  to 
said  committee. 

The  Convention  then  took  a  recess  of  one  hour,  in  order  to  allow  the  com 
mittee  time  to  report. 

On  reassembling,  Mr.  Smith,  on  behalf  of  the  committee  appointed  to  wait 
on  Judge  Durell,  verbally  reported  that  the  committee  had  discharged  its  duty, 
and  that  Judge  Durell  declined  to  issue  a  call  reconvening  the  Convention, 
alleging  as  his  reasons  fears  that  he  would  not  be  sustained  in  doing  so,  and  also 
his  distrust  of  the  Governor  of  Louisiana.  On  motion,  the  report  was  received, 
and  the  committee  discharged. 

The  yeas  and  nays  were  then  demanded  on  the  adoption  of  Mr.  Cutler's  pre 
amble  and  resolutions.  The  roll  being  called,  the  following  members  voted 
yea:  — 

Messrs.  Barrett,  Baum,  Bell,  Belden,  Cook,  Cutler,  Duane,  Davies,  Fish, 
Flagg,  Flood,  Hart,  Henderson,  Howell,  Howes,  Healey,  Maas,  O'Conner, 
Payne,  Poynot,  Spellicy,  Stauffer,  Terry,  and  Waters — 24. 

The  following  members  voted  nay,  viz. :  — 

Messrs.  Bofill,  Hire,  Morris,  Shaw,  and  Smith  —  5. 

Whereupon  the  president  declared  the  preamble  and  resolutions  adopted. 

In  accordance  with  the  foregoing  resolutions,  nominations  were  declared  open 
for  President  pro  tern,  of  the  Convention.  Hon.  R.  K.  Howell  was  nominated 
by  Mr.  Shaw.  No  other  nominations  being  made,  Mr.  Cutler  moved  that  the 
Hon.  R.  K.  Howell  be  unanimously  declared  the  President  pro  tern,  of  the  Con 
vention. 

The  secretary  submitted  the  name  of  Mr.  Howell,  and  he  was  unanimously 
elected.  Mr.  Cutler  offered  the  following  resolutions  :  — 

Resolved,  That  it  is  the  earnest  desire  of  the  members  of  the  Constitutional 
Convention  and  all  loyal  citizens  of  the  State  of  Louisiana,  that  the  Hon.  R.  K 
Howell,  this  day  elected  president  pro  tern,  of  this  Convention,  in  conjunction 
with  His  Excellency  the  Governor  of  the  State,  do  immediately  issue  their 


548  APPENDIX. 

respective  proclamations  reconvoking  said  Convention,  and  ordering  elections 
to  fill  vacancies  to  said  Convention. 

Resolved,  further,  That  it  is  the  earnest  desire  of  the  members  of  the  Consti 
tutional  Convention  of  the  State  of  Louisiana  now  assembled,  that  the  said  Con 
vention  should  assemble,  and  said  elections  be  held,  within  the  shortest  delay 
possible. 

The  foregoing  resolutions  were  unanimously  adopted,  and  the  Convention 
adjourned  subject  to  the  call  of  the  president  pro  tern. 

JOHN  E.  NEELIS,  Secretary. 


II. 
PROCLAMATION, 

BY   R.    K.    HOWELL,    PRESIDENT    PRO    TEM.    OF    THE    CONVENTION    FOR    THE 
REVISION   AND    AMENDMENT    OF    THE    CONSTITUTION    OF    LOUISIANA. 

Whereas,  By  the  wise,  just,  and  patriotic  policy  developed  by  the  Congress 
now  in  session,  it  is  essential  that  the  organic  law  of  the  State  of  Louisiana 
should  be  revised  and  amended  so  as  to  form  a  civil  government  in  this  State  in 
harmony  with  the  General  Government,  establish  impartial  justice,  insure  do 
mestic  tranquillity,  secure  the  blessings  of  liberty  to  all  citizens  alike,  and  restore 
the  State  to  a  proper  and  permanent  position  in  the  great  Union  of  States,  with 
ample  guarantees  against  any  future  disturbance  of  that  Union. 

And  whereas,  It  is  provided  by  resolution  adopted  on  the  25th  day  of  July, 
1864,  by  the  Convention  for  the  revision  and  amendment  of  the  Constitution  of 
Louisiana,  that  when  said  Convention  adjourns  it  shall  be  at  the  call  of  the  presi- 
ident,  whose  duty  it  shall  be  to  reconvoke  the  Convention  for  any  cause. 

And  whereas,  further,  It  is  important  that  the  proposed  amendments  to  the 
Constitution  of  the  United  States  should  be  acted  upon  in  this  State  within  the 
shortest  delay  practicable ;  and  that  he  shall  also,  in  that  case,  call  upon  the 
proper  officers  of  the  State  to  cause  elections  to  be  held  to  fill  any  vacancies 
that  may  exist  in  the  Convention,  in  parishes  where  the  same  may  be  practicable. 

And  whereas,  at  a  meeting  held  in  New  Orleans  on  the  26th  June,  1866,  the 
members  of  said  Convention  recognized  the  existence  of  the  contingency  pro 
vided  for  in  said  resolutions,  expressed  their  belief  that  the  wishes  and  interests 
of  the  loyal  people  of  this  State  demand  the  reassembling  of  the  said  Conven 
tion,  and  requested  and  duly  authorized  the  undersigned  to  act  as  president  pro 
tern,  for  the  purpose  of  reconvoking  said  Convention,  and  in  conjunction  with 
His  Excellency  the  Governor  of  the  State,  to  issue  the  requisite  proclamation 
reconvoking  said  Convention,  and  ordering  the  necessary  elections  as  soon  as 
possible ; 

Now,  therefore,  I,  Rufus  K.  Howell,  president  pro  tern,  of  the  Convention 
as  aforesaid,  by  virtue  of  the  power  and  authority  thus  conferred  on  me,  and 
in  pursuance  of  the  aforesaid  resolutions  of  adjournment,  do  issue  this  my 
proclamation  reconvoking  the  said  Convention,  for  the  revision  and  amendment 
of  the  Constitution  of  Louisiana ;  and  I  do  hereby  notify  and  request  all  the 


APPENDIX.  549 

delegates  to  said  Convention  to  assemble  in  the  hall  of  the  House  of  Represent 
atives,  Mechanics'  Institute  Building,  in  the  city  of  New  Orleans,  on  the  fifth 
Monday  (thirtieth  day)  of  July,  1866,  at  the  hour  of  12  o'clock,  M.  ;  and  I  do 
further  call  upon  His  Excellency  the  Governor  of  this  State  to  issue  the  neces 
sary  writs  of  election,  to  elect  delegates  to  the  said  Convention  in  parishes  not 
now  represented  therein. 

Done  and  signed  at  the  city  of  New  Orleans  this  seventh  day  of  July,  A.  D. 
1866,  and  of  the  independence  of  the  United  States  the  ninety-first. 

Attest :  R.  K.  HOWELL,  'President  pro  tern. 

JOHN  E.  NEELIS,  Secretary. 


III. 
PROCLAMATION 

BY    THE   GOVERNOR    OF    LOUISIANA. 

Whereas,  R.  K.  Howell,  president  pro  tern,  of  the  Convention  for  the  revision 
and  amendment  of  the  Constitution  of  Louisiana,  has  issued  an  order  reconvok- 
ing  the  said  Convention,  to  meet  in  the  city  of  New  Orleans  on  the  thirtieth 
day  of  July  inst.,  and 

Whereas,  in  the  same  document,  and  in  conformity  to  a  resolution  of  that 
body,  he  has  called  on  the  Governor  of  the  State  to  issue  writs  of  election  for 
delegates  to  said  Convention  in  all  parishes  not  represented  therein ; 

Now,  therefore,  I,  J.  Madison  Wells,  Governor  of  the  State  of  Louisiana,  do 
issue  this  my  proclamation,  commanding  that  an  election  be  held  on  Monday, 
the  third  day  of  September,  1866,  by  the  qualified  voters,  for  delegates  to  the 
aforesaid  Convention,  as  follows :  — 

(Here  follows  a  list  of  the  parishes  in  which  elections  were  to  be  held.) 

And  I  do  further  command  all  sheriffs,  commissioners  of  elections,  and  other 
officers  therein  concerned,  to  hold  the  said  election  as  herein  ordered,  the  pro 
ceedings  to  be  conducted  according  to  law,  and  no  person  will  have  the  right  to 
vote  unless  he  has  restored  his  citizenship  by  having  taken  the  oath,  before  com 
petent  authority,  as  prescribed  in  the  amnesty  proclamations  of  the  President  of 
the  United  States,  either  of  January  1st,  1864,  or  May  29th,  1865. 

All  persons  excluded  from  general  amnesty  by  being  embraced  in  any  of  the 
articles  of  exception  contained  therein,  will  not  be  allowed  to  vote  unless  spe 
cially  pardoned  by  the  President. 

Prompt  returns  will  be  made  of  said  election  to  the  Secretary  of  State,  for 
all  of  which  this  proclamation,  without  further  notice,  will  serve  as  authority. 

Given  under  my  hand  at  the  city  of  New  Orleans,  this  twenty-seventh  day 
of  July,  A.  D.  1866,  and  the  independence  of  the  United  States  the  ninety- 
first  J.  MADISON  WELLS. 
Attest : 

A  true  copy.  N.  C.  SNETHEN,  Private  Secretary. 


INDEX. 


A. 


Acts,  enabling,  Conventions  called  in  pur 
suance  of,  §  195,  and  note  1  ;  can  legis 
latures  bind  Conventions  by  their?  §§  376- 
418  ;  calling  Conventions,  analysis  and 
essential  character  of,  §§  404-408. 

Adams,  John,  connection  of,  with  the  form 
ation  of  the  first  American  Constitutions, 
§§  128,  129,  489;  appointed  on  the  com 
mittee  to  draft  the  Massachusetts  Constitu 
tion  of  1780,  §  157. 

Adams,  John  Quincy,  opinion  of,  bearing 
on  the  question  of  American  nationality, 
§48. 

Adams,  Samuel,  appointed  on  the  commit 
tee  to  draft  the  Massachusetts  Constitution 
of  1780,  §  157. 

Alabama,  Convention  of,  of  1819,  §  195; 
do.  of  1861  (Secession),  §§  247-249;  do.  of 
1865  (reconstruction),  §§  250-259. 

Allegiance  defined,  and  to  whom  owing  in 
the  United  States,  §§  52,  53 ;  "  Allegiance 
Cases,"  so  called,  in  South  Carolina,  §  53, 
note  2 ;  quasi,  defined,  53. 

Amendments  to  Constitutions,  necessity  of 
providing  for.  §§  525-529:  various  modes 
of  effecting,  §§  526,  530,  531;  excellences 
and  defects  of  the  several  modes,  §§  532- 
534,  538-540;  precedents  of  the  employ 
ment  of  these  modes,  §§  535-537,  541-546; 
where  a  legislature  participates  in  effecting, 
nature  of  its  act,  §§  547-550  ;  extent  of 
the  power  of  a  legislature  to  recommend, 
§§  551-555  ;  where  a  legislature  recom 
mends,  should  they  be  submitted  to  the 
executive  for  approval  ?  §§  556-562 ;  where 
a  State  legislature  has  once  rejected  amend 
ments  proposed  by  Congress  to  the  Fed 
eral  Constitution,  can  it  or  its  successor 
reconsider  them  ?  §  563 ;  where  the  Consti 
tution  provides  a  mode  of  effecting,  can 
another  and  different  mode  be  employed  ? 
§§  564-576. 

Appropriations,  power  of  Conventions  to 
make,  of  moneys  from  the  public  treasury, 
§§  435-441. 

Arkansas,  Convention  of,  of  1836.  §§  196, 
197;  cases  in  Supreme  Court  of,  respect 
ing  the  extent  of  the  power  of  a  legisla 
ture  to  propose  amendments  to  a  Consti 
tution,  §§  551-555. 


Arrest,  power  of  Conventions  to  make,  of 
their  own  members  or  of  strangers,  §§ 
460-470. 

Articles  of  Confederation,  history  and  char 
acter  of,  §§  159-162. 

Assembly,  the  General,  or  legislative  Con 
vention,  described,  §  6;  see  also  legisla 
ture. 

Attributes  of  sovereignty  specified,  §  22. 

Austin,  John,  marks  of  sovereignty  laid 
down  by,  §  19 ;  opinion  of,  as  to  the  locus 
of  sovereignty  in  the  United  States,  §  60; 
do.  as  to  an  "ulterior  legislature  in  New 
York,  superior  to  the  ordinary  legislature, 
§  513,  note  1. 

Autocracies,  Constitutions  of,  described, 
§70. 


B. 


Banks,  Nathaniel  P.,  General,  proclamation 
of,  for  the  reconstruction  of  Louisiana, 
§256. 

Belknap,  Dr.,  historian  of  New  Hampshire, 
quoted,  as  to  the  first  Convention  of  that 
State,  §  131. 

Bills  of  Rights,  description,  history,  and  ob 
jects  of,  §§  96-99;  why  no,  in  the  Federal 
Constitution,  §  98;  clause  in  American, 
generally,  respecting  altering  or  abolishing 
government,  commented  on,  §§  240-246. 

Bowdoin,  James,  appointed  on  the  commit 
tee  to  frame  Massachusetts  Constitution 
of  1780,  §  157. 

Bramlette,  Governor  of  Kentucky,  opinion 
of,  respecting  the  power  of  a  State  legisla 
ture  to  reconsider  amendments  to  the  Fed 
eral  Constitution  proposed  by  Congress 
and  once  rejected,  §  563. 

Brownson,  Orestes  A.,  Dr.,  opinion  of,  as 
to  the  mode  in  which  sovereignty  inheres 
in  the  people  of  the  United  States,  §  61 ; 
distinction  drawn  by,  between  Constitu 
tions  as  facts  and  Constitutions  as  instru 
ments  of  evidence,  §  63,  note  1. 

Buchanan,  James,  President,  opinion  of, 
respecting  the  Topeka  and  Lecompton 
Conventions,  §  214. 

Burke,  Edmund,  moral  competence  of  gov 
ernments  defined  by,  §  305;  sarcasm  of, 
respecting  the  French  Bill  of  Rights  of 
1793,  §  317. 


552 


INDEX. 


Butler,  Benj.  F.,  quoted,  as  to  conventional 
sovereignty,  §§  311,  343;  speech  of,  on  the 
right  of  Conventions  to  issue  precepts  to 
the  electors,  §  343. 


c. 


Calhoun,  John  C.,  opinion  of,  respecting 
the  bearing  of  the  mode  of  ratifying  the 
Federal  Constitution,  on  the  question  of 
American  nationality,  §  37 ;  speech  of,  on 
the  Michigan  Convention  of  December, 
1836, §  204. 

Censors,  Council  of,  a  device  for  effecting 
the  amendment  of  Constitutions  more  in 
genious  than  useful,  §  544. 

Citizens,  can  Conventions  limit  eligibility 
to  office  to  naturalized?  §§  355-361;  clause 
of  the  Federal  Constitution  as  to  rights  of, 
considered,  §  358-361. 

Citizenship,  rights  belonging  to  mere,  in 
the  several  States,  §§  359-361. 

Committee  of  the  whole,  use  of,  in  Con 
ventions,  §§  290,  291;  of  revision,  duty 
and  importance  of,  §  303;  of  the  Illinois 
Convention  of  1862,  on  the  powers  of  Con 
ventions,  §  308. 

Committees,  use  of,  in  Conventions,  §§ 
285-294;  members  of,  in  various  Conven 
tions,  and  reasons  for  and  against  employ 
ment  of,  §§  287-295 ;  number  and  duties 
of,  how  determined;  precedents  stated,  § 
296. 

Compact,  are  Constitutions,  as  facts,  founded 
on  V  §§  65-67 ;  are  Constitutions,  as  instru 
ments  of  evidence,  founded  on  ?  §  68. 

Congress,  the  Continental,  advice  of,  to 
Massachusetts,  New  Hampshire,  Virginia, 
and  South  Carolina,  in  1775,  relative  to 
the  establishment  therein  of  governments 
independent  of  the  crown,  §  127 ;  resolution 
of.  of  May  10, 1776,  respecting  the  formation 
of  such  governments  in  the  colonies  gener 
ally,  §§  128, 129;  as  a  Convention,  framing 
the  Articles  of  Confederation,  history  and 
character  of,  §§  159-161 ;  a  Provincial,  the 
first  independent  government  of  South 
Carolina,  §  131;  do.  of  New  Jersey,  §  139; 
do.  of  Maryland,  §  145 ;  do.  of  Georgia,  § 
147;  do.  of  New  York,  §  150. 

Congresses,  Provincial,  revolution  of  1776 
consummated  by,  §  10 ;  historv  and  powers 
of,  126. 

Connecticut,  Convention  of,  of  1818,  §  219, 
and  note  1. 

Constitution,  theory  of  the,  fundamental 
to  this  inquiry,  §  17;  the  term  defined,  § 
63 ;  of  the  United  States,  bearing  of  the 
mode  of  ratification  of,  on  the  question  of 
American  nationality,  §§  37,  38 ;  character 
of,  as  regarded  by  the  Conventions  called 
to  ratify  it,  §  42;  opinion  of  Patrick  Henry 
as  to  its  character,  §  42;  opinion  of  Mr. 
Taylor  of  North  Carolina,  §  42;  forms  part 
of  the  Constitutions  of  the  several  States, 
§  92;  is  supreme,  §§  93,  94;  should  be  kept 
independent  of  those  of  the  States,  §  95; 
opinion  of  Mr.  Webster  on  the  point,  §  95 ; 


distinction  between  a,  and  an  ordinary 
municipal  law,  §§  85-87 ;  the  term,  how 
used  in  this  treatise,  §  103;  may  become 
valid,  though  the  Convention  which  framed 
it  is  illegitimate,  §  124 :  the  first  New  Hamp 
shire,  formation  of,  §  131;  the  New  Hamp 
shire,  of  1783,  formation  of,  §  132 ;  the  first 
South  Carolina,  §  133 ;  the  South  Carolina, 
of  1778,  formation  and  character  of,  §  136 ; 
the  first  American,  by  whom  framed,  §  138, 
note  1 ;  the  Virginia,  of  1776,  validity  of, 
considered,  §  138,  note  2;  the  New  York, 
of  1777,  character  of,  §  152 ;  the  Vermont, 
of  1777,  character  of,  §  154;  attempts  of 
the  General  Assembly  to  give  validity  to, 
§  154 ;  the,  framed  by  the  Federal  Conven 
tion  of  1787,  character  of,  §  166 ;  the  Ken 
tucky,  of  1792,  formation  of,  §§  173,  174; 
the  Tennessee,  of  1796,  formation  of,  §§ 
175-182 ;  the  Maine,  of  1819,  formation  of, 
§§  183-185;  the  West  Virginia,  of  1863, 
formation  of,  §§  189, 190;  signing  of  a,  by 
members  of  a  Convention,  §  304;  Federal, 
power  of  Conventions,  as  legislatures,  to 
ratify  proposed  amendments  to,  §  447 ; 
Trial  of  me,  by  Fisher,  quoted  as  to  the 
inadequacy  of  the  provision  of  the  Federal 
Constitution  for  its  own  amendment,  §  543, 
note. 

Constitutions  as  objective  facts,  distin 
guished  from  Constitutions  as  instruments 
of  evidence,  §  63;  "  as  they  ought  to  be," 
defined  and  contrasted  with  Constitutions 
as  objective  facts,  §  64;  nature  and  varie 
ties  of,  as  objective  facts,  §§  65-70;  are 
they  founded  on  compact  V  §§  65-67 ;  are, 
as  instruments  of  evidence,  founded  on 
compact?  §  68;  where  discrepancies  exist 
between,  as  objective  facts,  and  as  instru 
ments  of  evidence,  which  have  the  supe 
rior  validity  ?  §  69 ;  varieties  of,  as  instru 
ments  of  evidence,  §  71 ;  cumulative,  de 
fined,  §  72;  enacted,  defined,  §  73;  written 
and  unwritten,  defined  and  contrasted,  §§ 
74-76;  advantages  of  written,  §  77;  dis 
advantages  of,  §  78;  opinion  of  De  Mais- 
tre,  §  78,  note  1;  advantages  of  unwritten, 
§  79 ;  disadvantages  of.  §  80 ;  balance  of 
excellences  and  defects  between  the  two, 
§81;  requisites  for  safe  operation  of  writ 
ten,  §§  82,  83;  all,  save  two,  in  the  United 
States,  have  been  written,  §  84;  varieties, 
mutual  relations,  and  internal  structure  of 
the  American,  §§  84,  88-103 ;  two  varieties 
of —  those  framed  for  the  United  States 
and  those  framed  for  the  States,  §  88;  dis 
tinctions  between  the  two,  §§  88-95 ;  rules 
of  construction  applicable  to  them  respect 
ively,  §  91  ;  the  Federal  Constitution  a 
part  of  the  several  State,  §  92 ;  of  the  sev 
eral  States,  part  of  the  Federal  Constitu 
tion,  §  92;  of  the  States  and  of  the  Union 
should  be  kept  independent;  opinion  of 
Mr.  Webster,  §  95 ;  internal  structure  of 
American,  §§96-103;  generally  contain,  1, 
Bill  of  Rights,  §§  96-99 ;  2,  Frame  of  Gov 
ernment,  §§  100,  101;  3,  Schedule,  §§  102, 
103  ;  resolution  of  the  Continental  Con 
gress  respecting  the  formation  of  the  earli- 


INDEX. 


553 


est,  in  the  colonies,  §§  128,  129;  first  two 
of  South  Carolina,  judicial  decision  as  to 
validity  of,  §  136,  note  2;  can  Conventions 
be  bound  by  the  Acts  calling  them  to  make 
submission  of,  to  the  people?  §§  410-414; 
submission  of,  to  the  people,  duty  of  Con 
ventions  in  general  to  make,  §  479 ;  duty, 
where  neither  the  Convention  Act  nor  the 
Constitution  requires  it,  §  481;  duty,  where 
submission  is  expressly  required  by  law, 
§§  482,  483;  duty,  where  submission  is  ex 
pressly  dispensed  with,  §§  484-486;  prece- 
dents'relating  to  the  submission  of,  §$  487- 
495;  by  whom  submission  of,  should  be 
made,  §§  497-499 ;  to  whom  submission  of, 
should  be  made,  §§  500-509 ;  nature  of  the 
act  performed  by  the  people,  where  sub 
mission  of,  is  made,  §§  510-513;  manner  in 
which  submission  of,  should  be  made,  §§ 
514-520  ;  promulgation  of,  §§  521-524  ; 
amendments  to,  general  doctrine  as  to 
stated,  §§  525-529;  opinion  of  the  judges 
of  the  Massachusetts  Supreme  Court  re 
specting  the  powers  of  Conventions  to 
make  amendments  to,  Appendix  C.,p.  540. 
Convention,  THE  CONSTITUTIONAL,  em 
ployed  in  America  to  frame  the  fundamen 
tal  law,  §  1;  importance  of,  in  general,  §  2; 
relation  of,  to  secession,  §  3;  THE  SPON 
TANEOUS,  or  PUBLIC  MEKTING,  §  5;  THE 
LEGISLATIVE  or  GENERAL  ASSEMBLY, 
§  6 ;  THE  REVOLUTIONARY,  §  7 ;  examples 
of  the  Revolutionary,  in  England,  §  8;  do. 
in  America,  §  9 ;  Revolutionary,  of  Massa 
chusetts,  of  1689,  §  9;  French  National, 
§  10;  THE  CONSTITUTIONAL,  defined  and 
contrasted  with  the  foregoing,  §  11 ;  exer 
cising  usurped  powers,  how  to  be  classed, 
§  12;  the  Revolutionary,  exercising  the 
powers  of  a  Constitutional,  how  to  be 
classed,  §  12;  the  Constitutional,  summary 
of  historv  of,  §§  13,  14;  an  adaptation  to 
constitutional  uses,  of  the  Revolutionary, 
§  15;  misconceptions  prevalent  respecting 
the  nature  of,  §  15 ;  constitutes  one  of  the 
rive  agencies  through  which  sovereignty 
indirectly  manifests  itself,  §  24;  relative 
rank  of,*§  24;  Federal,  of  1787,  action  of, 
respecting  the  ratification  of  the  Federal 
Constitution,  §§  36,  37,  166 ;  proper  modes 
of  initiating  or  calling  a,  §§  104,  114-116; 
by  whom  should  a,  be  called  V  §§  118-121 ; 
in  what  manner  should  a,  be  called  V  §§  122, 
123 ;  opinion  of  the  New  York  Council  of 
Revision  on  the  proper  mode  of  calling  a, 
§  122 ;  although  a,  be  illegitimate,  the  Con 
stitution  framed  by,  may  become  valid, 
§  124;  the  first  independent  government 
of  Virginia,  a  Provincial,  §  138;  do.  of 
Pennsylvania,  §  143;  do.  of  North  Carolina, 
§  145;  do.  of  Massachusetts,  §  156;  history 
and  character  of  the  New  Hampshire,  of 
1775,  §  131;  do.  of  1778,  §  132;  do.  of  1781, 
§  132;  the  South  Carolina,  of  1776,  §§  133, 
134;  do.  of  1778,  §§  135-137;  the  Virginia, 
of  1776,  §  138;  the  New  Jersey,  of  1776, 
§§  139,  140;  the  Delaware,  of  1776,  §§  141, 
142;  the  Pennsylvania,  of  1776,  §§  143, 
144;  the  Maryland,  of  1776,  §  145;  the 


North  Carolina,  of  1776,  §  146;  the  Geor 
gia,  of  1776,  §  147 ;  do.  of  1788,  §§  148, 
149,  167;  do.  of  January,  1789,  §  147,  167, 
217,  219;  do.  of  May,  1789,  §§  148, 149, 167, 
217,  219;  the  New"  York,  of  1776,  §§  150- 
152;  the  Vermont,  of  1777,  §§  153, 154;  do. 
of  1785,  and  of  1786,  §  155;  the  Massachu 
setts,  of  1778,  §  156;  do.  of  1779,  §§  157.158; 
the  Continental  Congress,  acting  as  a,§§  160, 
161;  the  Annapolis,  §  163;  the  Federal,  of 
1787,  §§  163-166 ;  the  Kentuckv,  of  1792,  §§ 
173,  174;  the  Tennessee,  of  1796,  §§  175- 
182;  the  Maine,  of  1819,  §§  183-185;  the 
Virginia  (Reconstruction),  of  1861,  §  186; 
the  Ohio,  of  18U2,  §  195;  the  Louisiana,  of 
1811,  §  195;  the  Indiana,  of  1816,  §  195; 
the  Mississippi,  of  1817,  §  195;  the  Illinois, 
of  1818.  §  195 ;  the  Alabama,  of  1819,  §  195 ; 
the  Missouri,  of  1820,  §  195 ;  the  Texas,  of 

1845,  §  195;  the  Wisconsin,  of  1846,  §  195; 
the  Minnesota,  of  1857,  §  195;  the  Kansas, 
of  1859,  §  195;  the  Nevada,  of  1864,  §  195; 
the  Iowa,  of  1844,  §§  196,  197.  210;  do.  of 

1846,  §§  196,  197,  210;  the  Wisconsin,  of 

1847,  §§  196,  197,  210;  the  California,   of 
1849,  §§  196, 197,  210;  the  Kansas, ,  of  lift*, 
§§  1%,  197,'2Ily  2T2^  do.  of  1857,  §§  196, 
197,  213-216;  do.  of  1859,  §  216;  the  Ore 
gon,  of  1857,  §§  196,  197,  210;  the  Nevada, 
of  1863,  §§  196,  197,  210;  the  Michigan,  of 
1835,  §§  196-198,  201,  208 ;  do.  of  Septem 
ber,  1836,  §§  196-199,  202;  do.  of  Decem 
ber,  1836,  §§  196,  197,  199-201,  203-209 ; 
the  Arkansas,  of  1836,  §§  196,  197,  210; 
the  Florida,  of  1839,  §§  196,  197,  210;  the 
Georgia,  of  1795,  and  of  1798,  §§  217,  218; 
the.  Kentucky,  of  1799,  and  of  1849,  §§  217, 
218;  the  Delaware,  of  1831,  and  of  1852, 
§§  217,  218;  the  Mississippi,  of  1832,  §§  217, 
218;  the  Tennessee,  of  1834,  §§  217,  218; 
the  Louisiana,  of  1844  and  of  1852,  §§  217, 
218;  the  Illinois,  of  1847   and  of  1862,  §§ 
217,  218;  the  Ohio,  of  1850,  §§  217,  218; 
the  Michigan,  of  1850,  §§  217,  218;   the 
New  Hampshire,  of  1850,  §§  217,  218;  the 
Georgia,of  1838,  §§  217, 219 ;  the  South  Car 
olina,  of  1790,  §§  217,  219;  the  New  Hamp 
shire,  of  1791,  §§  217,219;  the  New  York, 
of  1801,  of  1821,  and  of  1846,  §§  217,  219 ; 
the  Connecticut,  of  1818,  §§  217,  219;  the 
Massachusetts,  of  1820,  and  of  1853,  §§  217, 
219;  the  Rhode  Island,  of  1824,  of  1834, 
of  1841  (under  the  charter),  and  of  1842, 
§§  217,  219;  the  Virginia,  of  1829,  of  1850, 
and  of  1864,  §§  217,  219;  the  North  Car 
olina,  of  1835,  §§  217,  219;  the  Pennsyl 
vania,  of  1837,  §§  217,  219 ;  the  New  Jer 
sey,  of  1844,  §§  217,  219;  the  Missouri,  of 
1845,  of  1861,  and  of  1865.  §§  217,  219;  the 
Indiana,  of  1850,  §§  217,  219 ;  the  Vermont, 
of  1785,  &c.,  &c.,  §§  220;  the  Pennsylva 
nia,  of  1789,  §§  221-225;  the  Delaware,  of 
1792.  §§  221-225;  the  Marvland,  of  1850, 
§§  221-225;    the   Rhode  Island,   of   1841 
("People's  Convention"),  §§  226-246;  by 
whom  a,  should  be  elected,  §  104 ;  by  whom 
the  delegates  were  elected  to  the  Pennsyl 
vania,  of  1776,  §§  263;  do.  of  1789,  and'of 
1837,  §  2u2 ;  to  the  Ohio,  of  1850,  §  262 ;  to 


554 


INDEX. 


the  Michigan,  of  1850,  §  262;  to  the  Iowa, 
of  1857,  §  262;  to  the  Minnesota,  of  1857, 
§  262;  to  the  Kansas,  of  1859,  §  262;  to  the 
West  Virginia,  of  1861,  §  262;  to  the  Mary 
land,  of  1864,  §  262:  to  the  Massachusetts, 
of  1779,  of  1821,  and  1853,  §  262;  to  the 
Delaware,  of  1776,  §  26-3  ;  do.  of  1831,  and 
of  1852,  §  262;  to  the  North  Carolina,  of 
1776,  §  263;  do.  of  1835,  §  262;  to  the  New 
York,  of  .1821,  §  264,  266;  do.  of  1846, 
§262;  to  the  Illinois,  of  1847,  and  1862, 
§  262;  to  the  Kentucky,  of  1849,  §  262;  to 
the  Virginia,  of  1829,  "and  of  1850,  §  262; 
to  the  Vermont,  of  1777.  §  263:  to  the  Geor 
gia,  of  1776  and  of  1788,  §§  264,  266 ;  to 
the  Maine,  of  1819,  §  262;  to  the  New 
Hampshire,  of  1850,  §  262;  to  the  Wiscon 
sin,  of  1847,  §  262;  to  the  California,  of 
1849,  §  262;  to  the  Kansas,  of  1859,  §  262; 
to  the  Rhode  Island,  of  1841,  §§  265,  266; 
Qualifications  required  for  delegates  to  the 
New  York,  of  1821,  §  267;  to  the  North 
Carolina,  of  1835,  §  267;  to  the  Pennsyl 
vania,  of  1837,  §  267;  to  the  New  Hamp 
shire,  of  1850,  §  267;  to  the  Ohio,  of  1850, 
§  267 ;  to  the  Delaware,  of  1852,  §  267 ;  to 
the  Iowa,  of  1857,  §  267;  to  the  Maryland, 
of  1864,  §  267;  to  the  Nevada,  of  1864, 
§  267;  the  Minnesota  of  1857,  divided  into 
two  Conventions,  §  270;  the  New  Jersey, 
of  1844,  delegates  elected  to,  from  all  paV- 
ties,  §  271;  can  a,  appoint  officers  to  till 
vacancies  in  the  government  V  §§  325-330; 
can  a,  eject  from  office  persons  appointed 
thereto  by  the  government  V  §§  325,  326 ; 
can  a,  direct  government  officers  in  the 
discharge  of  their  duties  ?  §§  325,  326 ; 
Missouri  of  1865,  ordinance  of,  to  vacate 
offices  under  the  State  government,  §§ 
327-330;  is  the  Act  calling  a,  a  govern 
ment  measure?  §  3b8;  Opinion  of  the  Su 
preme  Court  of  New  York  as  to  the  power 
of  a  legislature  to  modify  the  Act  calling 
a,  Appendix  D.,  p.  542; 'of  Louisiana,  of 
1864,  official  proceedings  culminating  in 
the  reassembling  of,  in  1866  ;  Appendix  E., 
p.  545. 

Conventions,  Varieties  of,  in  the  United 
States,  §§  4-16;  Spontaneous,  described, 
§§  4,  5;  Legislative,  or  General  Assemblies, 
§  6;  Revolutionary,  §§  7-10;  Constitutional, 
§§  11-16;  Provincial,  or  Congresses,  §§  10, 
126;  to  ratify  the  Federal  Constitution, 
opinions  expressed  in,  as  to  its  character, 
§  42;  of  the  Revolutionary  period,  from 
1776  to  1789,  §§  126-169;  called  to  ratify 
Federal  or  State  Constitutions,  §  167;  of  the 
post-revolutionary  period,  from  1789  to  the 
present,  §§  170-259 ;  called  to  frame  Con 
stitutions  for  States  to  be  formed  within  the 
jurisdiction  of  States  members  of  the  Union, 
§§  171-193;  called  to  frame  Constitutions 
for  States  to  be  formed  out  of  Federal  Ter 
ritory,  under  enabling  Acts  of  Congress, 
§  194,  195;  without  enabling  Acts,  §§  196- 
216;  called  to  revise  the  Constitutions  of 
States,  members  of  the  Union,  §§  217-259 ; 
called  by  legislative  authority  in  pursuance 
of  constitutional  provisions,  §  218 ;  called 


bv  legislative  authority  without  constitu 
tional  provisions,  §  219;  called  by  Councils 
of  Censors,  §  220;  called  by  legislative  au 
thority,  in  disregard  of  constitutional  pro 
visions,  §§  221-225;  called  in  defiance  of 
the  existing  government,  §§  226-246;  se 
cession,  §§247-249;  reconstruction,  §§  250- 
259 ;  by  whom  delegates  to,  should  be  and 
are  elected,  §§  260-266 ;  who  may  be  mem 
bers  of,  §§  267-269 ;  constitution  of,  in  one 
chamber  or  in  two,  §§  270,  271;  internal 
organization  of,  §§  272-284;  officers  of, 
§  274;  should  members  of  be  sworn?  form 
of  oath,  §§  277-283;  mode  of  proceeding 
of,  §§  285-304;  employment  of  committees 
in,  §§  285-294;  standing  committees  of, 
§  295 :  powers  of,  §§  305-478 ;  two  theories 
as  to  powers  of,  §§  307-310 ;  theory  of  the 
sovereignty  of,  a  novelty,  §§  311,  312;  ques 
tion  of  the  sovereignty  of,  considered.  §§ 
315-319;  powers  of,  with  reference  to  the 
government  of  the  state,  as  a  whole,  §§ 
320-330;  can  they  till  vacancies  in  the  va 
rious  governmental  departments?  §§  325, 
327-330;  can  they  eject  from  office  appoint 
ees  of  the  government?  §§  325-330;  can 
they  direct  governmental  officers  in  the  dis 
charge  of  their  duties?  §§  325,326;  powers 
of,  with  reference  to  the  electors,  §§  331- 
364;  can  they  disfranchise  electors?  §§  335- 
337;  can  they  till  their  own  vacancies? 
§  338;  can  they  authorize  the  colleagues 
of  deceased  or  resigning  members  to  name 
their  successors  ?  §  339 ;  can  they  issue  pre 
cepts  to  the  electors  directing  them  to  fill 
vacancies?  §§  340-347;  can  the  electors 
hold  elections  to  fill  vacancies  in,  at  such 
time  or  manner  as  they  may  think  fit? 
§§  348,  349 ;  can  they  receive  as  delegates, 
persons  elected  at  a  time  or  in  a  manner 
not  provided  by  law?  §  350;  can  they  limit 
the  discretion  of  the  electors,  or  of  tne  sov 
ereign,  in  the  discharge  of  their  duties? 
§§  351-362;  can  the  electors  instruct  their 
delegates  to?  §§  362-364;  relations  of,  to 
the  executive  and  judiciary,  §  366;  rela 
tions  of,  to  the  legislature,  and  powers  there 
from  resulting,  §§  366-449;  are  but  mere 
committees,  §  367 ;  structure  and  functions 
of,  contrasted  with  those  of  legislatures, 
§§  367-375;  power  of,  to  annul  perfect 
rights,  §  370,  note  1;  can  legislatures  bind? 
§§  376-418;  power  of  legislatures  to  dictate 
to,  what  they  shall  or  shall  not  recommend, 
§§  381,  382 ;  question  discussed  in  various, 
§§  383-387 ;  where  Acts  of  the  legislature, 
which  have  been  voted  on  by  the  people, 
are  conceded  to  bind,  source  of  their  va 
lidity,  §§  389-409;  can  legislatures  bind, 
to  submit  the  fruit  of  their  labors  to  the 
people?  §§  410-418;  do  Conventions  pos 
sess  legislative  powers,  §§  419-441 ;  power 
of,  to  repeal  ordinary  laws,  §§  430-434; 
power  of,  to  appropriate  money,  §§  435- 
441;  power  of,  as  legislatures,  to  prescribe 
the  times,  places,  and  manner  of  electing 
senators  and  representatives  in  Congress, 
§§  442-446;  power  of,  as  legislatures,  to 
ratify  proposed  amendments  to  the  Federal 


INDEX. 


555 


Constitution,  §  447;  power  of,  to  fetter  a 
discretion  confided  by  the  Federal  Consti 
tution  to  a  State  legislature,  §§  448,  449 ; 
powers  of,  with  reference  to  their  internal 
relations,  express  and  implied,  §§  450-470 ; 
powers  of,  with  reference  to  their  organiza 
tions,  to  the  maintenance  of  order  and  to 
the  conduct  of  their  business,  §§  454-458 ; 
power  of,  to  arrest  or  punish  their  own 
members  or  strangers,  §§  459-470;  priv 
ileges  of  members  of,  §§  471,  472;  power 
of,  to  prolong  or  perpetuate  their  existence, 
§§  473-478 ;  duty  of,  to  submit  their  work 
to  the  people,  in  general,  §  479;  duty  of, 
where  neither  the  Convention  Act  nor  the 
Constitution  requires  submission,  §  481; 
duty  of,  where  submission  is  expressly  re 
quired  by  law,  §§  482,  483 ;  duty  of,  where 
submission  is  by  law  expressly  dispensed 
with,  §§  484-486  ;  list  of  all  that  have  been 
held  in  the  United  States.  Appendix  A., 
p.  533. 

Corollaries,  practical,  relating  to  the  exer 
cise  of  sovereignty,  §  25. 

Council  of  Censors,  a  device  for  effecting 
the  amendment  of  Constitutions  more  in 
genious  than  useful,  §  544. 

Council  of  Revision,  New  York,  opinion 
of,  relating  to  the  proper  manner  of  calling 
a  Convention,  §§  122,  484, 534,  and  Appen 
dix  B.,  p.  538. 

Counter -Re  volutions,  description  of,  § 
111. 

Court,  Supreme,  of  the  United  States,  opin 
ion  of,  bearing  on  the  question  of  Ameri 
can  nationality,  §  46 ;  opinion  of,  bearing 
on  the  question  whether  the  States  were 
sovereign  under  the  confederation,  §  50; 
of  South  Carolina,  as  to  the  validity  of  the 
first  two  South  Carolina  Constitutions, 
§  136,  note  2;  of  Michigan,  and  of  Ohio, 
on  the  validity  of  the  first  Convention  of 
Michigan,  and  of  the  government  estab 
lished  therebv,  §§  207,  and  note  1,  on  p. 
198 ;  of  the  United  States,  on  the  same 
question,  §§  207,208;  do.  on  the  validity 
of  the  "People's  Constitution"  and  gov 
ernment  of  Rhode  Island,  §§  229-231;  of 
Massachusetts,  opinion  of,  on  the  binding 
force  upon  a  Convention,  of  the  Act  under 
which  it  assembles,  §§  388,  389 ;  Appendix 
C.,  p.  540;  of  New  York,  opinion  of,  on  the 
same  question,  §§  390-399 ;  Appendix  D., 
p.  542 ;  of  Illinois,  opinion  of,  as  to  repeal- 
ibility  of  an  Act  submitted  to  and  adopted 
by  the  people,  §§  407,  408 ;  of  Delaware, 
opinion  of,  relative  to  legislation  by  the 
people,  §  418;  of  Illinois,  decision  of,  re 
specting  the  "Chicago  Ordinance,"  §  432; 
of  Arkansas,  opinion  of,  respecting  the 
extent  of  the  power  of  a  legislature  to 
recommend  amendments  to  a  Constitu 
tion,  §§  551-555. 


D. 


Dallas,  George  M.,  opinion  of,  as  to  the  pow 
ers  of  Conventions,  §  308. 


Davis,  Henry  Winter,  speech  of,  on  the  Le- 

compton  Convention,  $  215. 
Debates  of  Conventions,  character  of,  §  457; 

provisions  for  preserving,  §  275. 
Delaware,  Convention  of,  of  1776,  §§  141, 

142;  do.  of  1792,  §§  221-225;  do.  of  1831 

and  of  1852,  §§217,218. 
Delegates,  to  Conventions,  who  may  be,  §§ 

267-269  ;  can  Conventions  receive  as,  per 
sons  elected  at  a  time  or  in  a  manner  not 

provided  by  law  V  §  350. 
De  Maistre,  opinion  of,  respecting  written 

Constitutions,  §  78,  note  1. 
Democracies,  Constitutions  of,  §  70. 
Dorr,   Thomas  W.,    elected    Governor    of 

Rhode  Island  by  the  "  people's  party," 

§  228. 

E. 

Elections  to  fill  vacancies  in  Conventions, 
when  and  how  to  be  made,  §§  348,  349. 

Electors,  the,  one  of  the  agencies  through 
which  sovereignty  indirectly  manifests  it 
self,  §  24;  relative  rank  at,  §  24;  impro- 
prietv  of  leaving  the  duty  of  calling  Con 
ventions  to,  §  118;  commonlv  the  only 
constituents  of  Conventions,  §§  260-266"; 
functions  and  relations  to  Conventions  of 
the,  §§  314,  331-334,  364 ;  powers  of  Con 
ventions  with  reference  to  the,  §§  335-365 ; 
can  Conventions  disfranchise  V  §§  335-337 ; 
can  Conventions  exercise  the  functions  of, 
to  elect  delegates  to  fill  vacancies  in  their 
own  ranks,  or  authorize  the  colleagues  of 
deceased  or  resigning  members  to  fill 
them?  §§338,339;  can  Conventions  issue 
precepts  to  the,  directing  elections  to  fill 
vacancies?  §§  340-347;  can  elections  be 
held  by  the,  at  any  time  or  manner  they 
may  think  fit?  §  348;  can  Conventions 
limit  the  discretion  of  the,  in  regard  to  the 
persons  whom  they  shall  or  shall  not  elect 
to  office?  §§  351-361;  can  the,  instruct 
their  delegates  to  Conventions?  §§  362- 
364. 

Ewing,  Thomas,  speech  of,  on  the  Michi 
gan  Convention  of  December,  1836,  §  205. 

Executive,  the,  one  of  the  agencies  through 
which  sovereignty  indirectly  manifests  it 
self,  §  24 ;  relative  rank  of,  §  24 ;  impropri- 
etv  of  leaving  the  duty  of  calling  Conven 
tions  to,  §lgQ:  relations  of,  to  Conven 
tions,  §  3657^ 

Executive  act,  the  act  of  the  people  in  pass 
ing  upon  a  fundamental  law,  not  an, 
§§  510-513. 

F. 

Federal  Convention  of  1787,  §§  163-166; 
discussion  in,  as  to  binding  force  upon  it 
self  of  the  acts  under  which  it  assembled, 
§§  383-386. 

Fisher,  Trial  of  the  Constitution,  quoted,  as 
to  the  inadequacy  of  the  mode  provided  in 
the  Federal  Constitution  for  its  own  amend 
ment,  §  543,  note. 


556 


INDEX. 


Florida,  Convention  of,  of  1839,  §§  196,197; 

do.    of   1861,  §§    247-249;    do.  of   1865, 

§§  250-259. 
Frame  of  Government,  as  a   part  of  the 

American     Constitutions,    definition    and 

contents  of,  §§  100,  101. 
Frankland,  State  of,  §  175. 
Franklin,  Benjamin,  sketch  of  Articles  of 

Confederation  prepared  by,  §  159. 


G. 


Qaston,  the  Hon.  Mr.,  opinion  of,  as  to  the 
powers  of  the  North  Carolina  Convention 
of  1835,  §  387. 

Georgia,  Convention  of,  of  1776,  §  147;  do. 
of  1788,  §§  148.  149;  do.  of  January,  1789, 
and  of  May,  1789,  §§  148,  149,  219,  note 
1;  do.  of  1795  and  of  1798,  §§  217,  218, 
note  1  ;  do.  of  1838,  §  219  ;  do.  of  1861, 
§§  247-249  ;  do.  of  1865,  §§  250-259. 

Government,  leading  principles  of  the 
American  system  of,  §  1;  branches  or 
departments  of,  by  which  sovereignty  is 
indirectly  manifested,  §  24;  relative  rank 
of  the  various  departments  of,  §  25;  was 
that  established  b  the  Federal  Constitu 


ments  proposed  by  Congress  to  the  Federal 
Constitution,  §  559. 

Howell,  R.  K.,  Judge,  appointed  president 
pro  tern,  of  the  Louisiana  Convention  of 
1864,  §  475. 

Hurd,  John  Codman,  opinion  of,  as  to  the 
locus  of  sovereignty  in  the  United  States, 
§  60 ;  on  the  distinction  between  Constitu 
tions,  as  objective  facts,  and  as  instruments 
of  evidence,  §  63,  note  1. 


I. 


Illegitimate  and  revolutionary,  distinction 
between,  §  113. 

Illinois,  Convention  of,  of  1818,  §  195 ;  do. 
of  1847,  and  of  1862,  §§  217,  218;  do.  of 
1862,  form  of  oath  administered  to  mem 
bers  of,  §§  282,  283;  do.  of  1862,  charge 
against  members  of,  of  complicity  with 
Knights  of  the  Golden  Circle,  §§  467,  468. 

Indiana,  Convention  of,  of  1816,  §  195 ;  do. 
of  1850,  §  219. 

Instructions,  can  the  electors  give,  to  their 
delegates  to  Conventions  ?  §§  362-364. 

Iowa,  Convention  of,  of  1844,  §§  196,197; 
do.  of  1846,  §§  196,  197 ;  do.  of  1857,  §§ 
217,  218. 


tion  a  consolidated  ?  §§42-45;  opinion  of 
Patrick  Henry  as  to  the  character  of  the 
Federal,  §  42;  opinion  of  Mr.  Taylor,  of 
North  Carolina,  §  42;   opinion  of  James 
Wilson,  of   Pennsylvania,   §    42;    defini 
tion  of  a  consolidated,  §  43 ;  of  the  United     T        ,  , 
States,  partlv    Federal,    partly  National,    Jay.'  John'  participation  of,  in  the  formation 
§  43;  form  of,  in  the  colonies/in  the  early        ?Lth.e.^ew  York  Constitution  of  1777,  §§ 

nnriswl     nf    flin     'Pritr^l, ,«-;,->,,       K.K.    1Ort      1OT      19'-} 


J. 


period  of  the  Revolution,  §§  126,  127.  133, 
137,  139,  143,  145,  146,  147,  150,  156;  is 
the  Convention  a  part  of  the  system  of? 
§  320  ;  are  members  of  Conventions  officers 
of  V  §§  823-324  ;  can  a  Convention  appoint 
officers  to  fill  vacancies  in?  §§  325-330; 
can  a  Convention  eject  from  office  persons 
holding  office  under?  §§  325,  326;  can  a 
Convention  direct  officers  of,  in  the  dis 
charge  of  their  duties  ?  §§  325,  326  ;  is  an 
Act  calling  a  Convention  a  government 
measure  ?  §  398  ;  is  a  power  to  recommend 
amendments  to  a  Constitution  amongst  the 
general  powers  of?  §  555. 
Grimke,  Mr.,  of  South  Carolina,  opinion  of, 
quoted,  §  48. 

II. 

Hallett,  B.  F.,  argument  of,  in  the  case  of 
Luther  v.  Borden,  §  233;  opinion  of,  re 
specting  the  sovereignty  of  Conventions, 
§  311;  speech  of,  on  the  right  of  Conven 
tions  to  issue  precepts  to  the  electors, 
§  344. 

Hamilton,  Alexander,  opinion  of,  as  to  the 
powers  and  duty  of  the  Federal  Conven 
tion,  §§  40,  385.  " 

Henry,  Patrick,  opinion  of,  as  to  the  locus 
of  sovereignty  in  the  United  States,  §  42. 

Howe,  Senator,  opinion  of,  respecting  trre 
submission  to  the  executive  of  amend 


151,  152. 

Jefferson,  Thomas,  character  of  the  Vir 
ginia  Convention  of  1776.  as  given  by,  § 
138;  opinion  of,  respecting  the  repealabil- 
ity  of  the  Virginia  Constitution  of  1776, 
§  138,  note  2;  opinion  of,  respecting  the 
amendment  of  Constitutions,  §§  82,  535, 
note. 

Johnson,  Andrew,  President,  proclamations 
of,  relating  to  the  reconstruction  of  the 
seceded  States,  §  257. 

Johnson,  Reverdy,  Senator,  speech  of, 
quoted,  respecting  the  submission  to  the 
executive  of  amendments  proposed  by 
Congress  to  the  Federal  Constitution,  § 
560. 

Judicial  act,  the  act  of  the  people  in  pass 
ing  upon  a  fundamental  law,  not  a,  §  510. 

Judiciary,  the,  one  of  the  agencies  through 
which  sovereignty  indirectly  manifests  it 
self,  §  24;  relative  rank  of,  §  24;  impro 
priety  of  leaving  to,  the  duty  of  calling 
Conventions,  considered,  §  119;  relations 
of,  to  Conventions,  ff  0"" 


K. 

Kansas,  Convention  of,  of  1855  (Topeka),  §§ 
211,  212;  do.  of  1857  (Lecompton),  §§  213- 
216;  do.  of  1859  (Wyandotte),  §§  195,  216; 
submission  of  Constitution  of,  of  1857,  to 
the  people,  §§  415, 416,  514-520. 


INDEX. 


557 


Kent,  James,  Chancellor,  opinion  of,  bearing 
on  the  question  of  American  nationality, 
§48. 

Kentucky,  erection  of  the  District  of,  into 
a  State ;  history  of  Convention  of,  of  171)2, 
§§  173,  174;  Conventions  of,  of  179!)  and 
1849,  §§  217,  218;  resolutions  of,  of  1798, 
§§  47,  80. 

Knights  of  the  Golden  Circle,  charge  of 
complicity  with,  against  members  of  the 
Illinois  Convention  of  1862,  §§  467,  468. 


Law,  fundamental,  or  Constitution,  a  funda 
mental  conception  in  this  inquiry,  §  17; 
fundamental  and  ordinary  municipal,  dis 
tinction  between,  §§  85-87;  duty  of  legis 
latures  to  frame  the  municipal,  and  of 
Conventions  to  frame  the  fundamental,  §§ 
370-372;  language  of  a,  §  406. 

Laws,  power  of  Conventions  to  repeal  ordi 
nary,  §§  430-434. 

Lecoinpton  Convention  of  Kansas,  history 
and  character  of,  §§  213-216 ;  Constitution, 
submission  of,  to  the  people,  §§  517-520. 

Legislation,  various  kinds  of,  how  effected 
here  and  in  other  countries,  §  1 ;  are  acts 
calling  conventions  properly  acts  of  ordi 
nary?  §§404-409;  the  act  "of  the  people 
in  passing  upon  a  fundamental  law  an  act 
of,  §  513. 

Legislative  powers,  do  Conventions  possess  ? 
§§  419. 

Legislature,  the,  or  General  Assembly,  de 
scribed,  §  6 ;  one  of  the  agencies  through 
which  sovereignty  indirectly  manifests  it 
self,  §  24;  relative*  rank  of,  §"24;  the  proper 
body  to  call  Conventions,  §§  121,  394-396 ; 
relative  numbers  constituting  the,  in  Eng 
land  and  the  United  States.  §  121;  of  Vir 
ginia,  of  May  6,  1862,  validity  of,  §§  191- 
193 ;  relations  of  Conventions  to  the,  and 
their  powers  resulting  therefrom,  §§  366- 
418;  structure:'.and  functions  of  the  Con 
vention  contrasted  with  those  of  the,  §§ 
367-375;  can  the,  bind  the  Convention,  §§ 
376-418;  limits  of  the  power  of  the,  to 
restrict  the  Convention  in  general,  §§  379- 
382 ;  power  of  the,  to  dictate  to  the  Con 
vention  what  it  shall  or  shall  not  recom 
mend,  §§  381,  382;  question  discussed  in 
various  Conventions,  §§  383-387;  where 
Acts  of  the,  which  have  been  voted  on  by 
the  people,  are  conceded  to  bind  the  Con 
vention,  source  of  their  validity,  §§  389- 
409 ;  can  the,  bind  the  Convention  by  its 
Acts  to  submit  the  fruit  of  its  deliberations 
to  the  people  ?  §§  410-418 ;  can  a  Conven 
tion  act  as  a,  in  matters  by  the  Federal 
Constitution  required  to  be"  transacted  by 
the  legislatures  of  the  several  States?  §§ 
419,  442,  447 ;  can  a  Convention  prescribe 
the  times,  places,  and  manner  of  electing 
Senators  and  Representatives  in  Congress? 
§§  442-446 ;  can  a,  as  a  legislature,  ratify 
proposed  amendments  to  the  Federal  Con 
stitution  ?  §  447 ;  a  State,  power  of  a  Con 


vention  to  fetter  a  discretion  confided  to, 
by  the  Federal  Constitution,  §§  419,  448- 
449;  where  amendments  to  a  Constitution 
are  recommended  by  a,  nature  of  its  act, 
§§  547-550 ;  extent  "of  the  power  of  a,  to 
recommend  amendments  to  a  Constitution, 
§§  551-555;  where  amendments  are  recom 
mended  by  a,  should  they  be  submitted 
to  the  executive  for  approval?  §§  556-562, 
where  a  State,  has  once  rejected  amend 
ments  proposed  by  Congress  to  the  Fed 
eral  Constitution,  "can  it,  or  its  successor, 
reconsider  them  ?  §  563. 

Legitimacy,  the  term  defined  and  illus 
trated,  §§  105-108. 

Lex  Parliamentaria,  how  far  the,  prevails  in 
Conventions,  §  459. 

Lincoln,  Abraham,  President,  proclamation 
of,  of  December  8,  1863,  relating  to  the 
reconstruction  of  the  r^-bel  States,  §  255. 

Locus  of  sovereignty  theoretically  consid 
ered,  §  21;  considered  with  reference  to 
historical  facts,  in  the  United  States  and 
in  foreign  countries,  §§  26,  27;  as  indicated 
by  Austin's  marks  or  tests,  §  28 ;  as  indi 
cated  by  the  additional  marks  laid  down 
herein,  §  29;  as  determined  by  the  exer 
cise  of  sovereignty,  §§  56,  57. 

Louisiana,  Convention  of,  of  1811,  §  195; 
do.  of  1844,  §§  217,  218;  do.  of  1852,  §§ 
217,  218;  do.  of  1861,  §§  247-249;  do.  of 
1864,  §§  250-259;  do.  of  1864,  case  of 
arrest  by,  §§  469,  470;  do.  reassembling 
and  dispersal  of,  in  1866,  §§  474-478 ;  offi 
cial  proceedings  culminating  in  reassem 
bling  of,  Appendix,  E.,  p.  545. 

Lowndes,  Rawlins,  connection  of,  with  the 
formation  of  the  South  Carolina  Constitu 
tion  of  1778,  §  136. 


M. 

Madison,  James,  opinion  of,  as  to  the  func 
tions  and  duties  of  the  Federal  Conven 
tion,  §  40 ;  do.  on  the  question  whether  the 
States  were  ever  sovereign,  §  49;  as  to  the 
powers  of  Conventions,  §  309. 

Maine,  erection  of,  into  a  State,  Convention 
of,  of  1819,  §§  183-185. 

Maine,  Henry  Sumner,  on  Ancient  Law, 
quoted,  §  66. 

Manifestation  of  sovereignty,  modes  of,  §§ 
23,  24. 

Marks  or  tests  of  sovereignty.  Austin's,  § 
19 ;  additional,  laid  down  herein,  §  20. 

Maryland,  Convention  of,  of  1776,  §  145; 
do.  of  1850,  §§  221-225;  do.  of  1864,  §§ 
217-218;  revolutionary  movement  in,  in 
1837,  §§  204,  224. 

Mason,  George,  opinion  of,  as  to  the  powers 
of  the  Federal  Convention,  §  384. 

Massachusetts,  Revolutionary  Convention 
in,  in  1689,  §§  9,  10;  first  government  of, 
independent  of  the  crown,  §  127;  Conven 
tion  of,  of  1778,  §  156;  do.  of  1779,  §§ 
157,  158;  do.  of  1820,  and  of  1853,  §  219; 
consent  of,  to  the  erection  of  the  District 
of  Maine  into  a  State,  §  184. 


558 


INDEX. 


May,  Thomas  P.,  arrest  of,  by  the  Louisi 
ana  Convention  of  1804,  §§  469,  470. 

McLean,  .John,  Justice,  dissenting  opinion 
of,  relating  to  the  State  government  of 
Michigan,  framed  in  1835,  §  208. 

Meeting,  Public,  or  Spontaneous  Conven 
tion,  §§  4,  5. 

Members  of  Conventions,  privileges  of,  §§ 
471,472. 

Michigan,  Convention  of,  of  1835,  §§  196- 
198,  201,  208;  do.  of  September,  1836,  §§ 
196-199,  202;  do.  of  December,  1836,  §§ 
196,  197,  199-201,  203-209;  do.  of  1850, 
§§  217,  218. 

Mill,  John  Stuart,  quoted,  as  to  the  condi 
tions  of  safe  political  progress,  §  529, 
note. 

Minnesota,  Convention  of,  of  1857,  §§  195, 
270. 

Misconceptions  respecting  the  nature  of 
Constitutional  Conventions,  §  15. 

Mississippi,  Convention  of,  6*f  1817,  §  195 ; 
do.  of  1832,  §§  217,  218;  do.  of  1861,  §§ 
247-249 ;  do.  of  1865,  §§  250-259. 

Missouri,  Convention  of,  of  1820,  §  195; 
do.  of  1845,  of  1861,  and  of  1865,  §  219; 
do.  of  1865,  Ordinance  of,  to  vacate  offices 
under  the  State  government,  §§  327-330. 

Mode,  signification  of  the  term,  when  used 
in  reference  to  sovereignty,  §  55. 

Monarchies,  limited,  §  70";  absolute,  §  70. 

Money,  power  of  Conventions  to  appropri 
ate,  §§  435-441. 

Morton,  Marcus,  speech  of,  on  the  right  of 
Conventions  to  issue  precepts  to  the  elec 
tors,  §  345. 


N. 


Nation,  do  the  United  States  constitute  a? 
§§  30-50;  what  it  is  to  be  a,  §  30;  what  it 
is  not  to  be  a,  §  31 ;  the  consolidation  of 
the  United  Colonies  into  a,  the  evident 
purpose  of  God  and  of  the  men  of  all 
times  in  America,  §  34:  bearing  of  the 
mode  of  ratifying  the  Federal  Constitution 
on  the  question  whether  the  United  States 
constitute  a,  §§  36-38;  opinions  of  contem 
porary  statesmen  on  the  question,  §§  39, 
45  ;  judicial  decisions  and  opinions  of 
statesmen  and  publicists  subsequent  to  the 
formation  of  the  Federal  government,  on 
the  question,  §§  46-48  ;  if  the  United 
States  constitute  a,  sovereignty  resides  in 
the  nation,  §§  30,  50. 

Nationality,  American,  the  question  of  con 
sidered,  30-50;  successive  steps  in  the  de 
velopment  of,  in  the  United  States,  §§  34, 
35;  bearing  on  the  question  of  our,  of  the 
mode  of  ratifying  the  Federal  Constitution, 
§§  36-38;  opinions  of  contemporary  states 
men  on  the  question,  §§  39-45;  opinions 
of  statesmen  and  publicists,  and  judicial 
decisions,  subsequent  to  the  formation  of 
the  Federal  Government,  on  the  question, 

Nations,  method  of  nature  in  the  genesis  of, 
explained,  §§  32,  33. 


Nevada,  Convention  of,  of  1863,  §  195 ;  do. 

of  1864,  §§  196,  197. 

•  New  Hampshire,  advice  of  the  Continen 
tal  Congress  to,  relative  to  founding  new 
government  in,  §  127;  Convention  of,  of 
1775,  §  131 ;  do:  of  1778  and  of  1781,  §  132 ; 
do.  of  1791,  §  219;  do.  of  1850,  §§  217,  218. 

New  Jersey,  Convention  of,  of  1776,  §  139 ; 
do.  of  1844,  §  219;  delegates  to  the,  of 
1844,  elected  equally  from  all  parties.  §  271. 

New  York,  Convention  of,  of  1776,  §§  150- 
152;  consent  of  State  of,  to  the  erection  of 
Vermont  into  a  State,  §  171,  note  1; 
Convention  of,  of  1801,  §  219;  do.  of  1821, 
§  219;  do.  of  1846,  §  219;  veto  of  the 
Council  of  Revision  of,  of  the  Convention 
Bill  of  1820,  Appendix  B,  p.  538 :  opinion 
of  the  Judges  of  the  Supreme  Court  of, 
respecting  the  power  of  a  legislature  to 
modify  a  Convention  Act  passed  upon  by 
the  people,  Appendix  D.,  p.  542. 

Niles,  Senator,  speech  of,  on  the  Michigan 
Convention  of  December,  1836,  §  206. 

Non-Resistance,  doctrine  of,  stated,  and 
relation  of,  to  contents  of  our  Bills  of 
Rights,  §§  242-244. 

North  Carolina,  Convention  of,  of  1776, 
§  146 ;  consent  of  the  State  of,  to  the  erec 
tion  of  Tennessee  into  a  State ;  deed  of 
cession  of,  §§  175-182;  Convention  of,  of 
1835,  §  219;  do.  of  1861,  §§  247-249;  do. 
of  1865,  §§  250-259;  Convention  of,  of 
1835,  oath  administered  to  members  of, 
§  281;  do.  of  1835,  discussion  in,  as  to 
binding  form  of  the  Act  under  which  it 
assembled,  §  387. 


o. 


Oath,  should  members  of  Conventions  take 
an  ?  §§  277,  278 ;  form  of,  §§  279-283. 

O'Connor,  Charles,  argument  of,  as  to  the 
power  of  Conventions  to  limit  the  electors, 
§353. 

Officers  of  Conventions,  what  are,  and  how 
chosen?  §  274;  are  members  of  a  Conven 
tion  State  officers?  §§  322-324;  can  a  Con 
vention  appoint,  to  fill  vacancies  in  the  gov 
ernment?  §§  325-330;  can  a  Convention 
eject  from  office  persons  who  are,  under 
the  government?  §§  325,  326;  can  a  Con 
vention  direct,  in  the  discharge  of  their 
official  duties  ?  §§  325,  326. 

Offices,  Ordinance  of  the  Missouri  Conven 
tion  of  1865,  to  vacate  certain,  under  the 
State  government,  §§  327-330. 

Ohio,  Convention  of,  of  1802,  6  195 ;  do.  of 
1850,  §§  217,  218. 

Ordinance,  of  1787,  extension  of  provis 
ions  of,  to  Tennessee,  §§  175,  176;  bear 
ing  of,  on  the  legitimacy  of  Conventions 
called  within  the  territory  covered  by  it, 
§§  196-207;  of  the  Missouri  Convention 
of  1865,  to  vacate  offices  under  the  State 
government,  §§  327-330. 

Oregon,  Convention  of,  of  1857,  §§  196, 197. 

Organization  of  Conventions,  §§  272-284: 
how  initiated,  §  273. 


IXDEX. 


559 


P. 

Parker,  Joel.  Judge,  speech  of,  on  the  right 
of  Conventions  to  issue  precepts  to  the 
electors,  §  346. 

Passive  obedience,  doctrine  of,  explained, 
§  -J4-2. 

Paterson,  Justice,  opinion  of,   bearing   o 
the  question  whether  the  States  under  the 
Confederation  were  sovereign,  §  50.  _ 

Pennsylvania,  Convention  of,  of  1.76,  §§ 
143,  144:  do.  of  1789,  §§  221-225;  do.  of 


1837. §  219. 

People,  of  the  United  States,  how  sover- 
ei"nty  inheres  in  the,  §§  54-57:  in  what 
capacity  the,  exercise  sovereignty,  §§  58, 
59;  can  the.  limit  themselves?  §  351. 
Peters,  Mr.,  of  Illinois,  opinion  of,  respec 

in"  the  powers  of  Conventions,  §  308. 
Pierce,  Franklin,  President,  opinion  of,  re- 
«pivtinp  the  Topeka  Convention  of  Kan 
sas,  §  212. 
Pinckney,  Charles,  opinion  of,  bearing  o 

the  question  of  our  nationaliity,  §  47. 
Pinckney,  C.  C.,  opinion  of,  respecting  the 
function  and  duty  of  the  Federal  Conven 
tion,  §  40;  do.  bearing  on  the  question  ot 
our  nationality,  §  47. 

Porter,  Mr.,  of  New  York,  argument  of,  as 
to  the  power  of  Conventions  to  limit  the 
electors.  §  354. 
Power,  term  defined.  §  305:  of  the  electoral 

bodv,  a  delegated  power,  §  354, 
Powers   of  Conventions,  §§  30o-4,8:   two 
theories  of  the.  stated,  and   examples  of, 
triven    55  307-311:   theory  that  they  are 
Sovereign,   a   novelty,   §§    311,  312:   with 
reference  to  the  sovereign,  or  to  sovereign 
rights,  §§  315-319;  with  reference  to  the 
governmenVof  the  state   as  a  whole,  §v 
3->0-330;  growing  out  of  their  relations  to 
the  elect.  >rs,§§  3-35-364;  to  the  executive 
and  iudiciarv.-365,366;  to  the  legislature, 
R*  3H7-449:  of  the  legislature  to  bind  the 
Convention.  §§  376-418:  of  conventions  to 
K><-i-late,  §§  419-441 :  to  appropriate  money, 
sf  4:;:>-441 :  as  legislatures,  to  prescribe  the 
times  places,  and  manner  of  electing  sen 
ators  and  representatives  in  Congress,  §§ 
44o_446-  a*  legislatures,  to  ratify  proposed 
amendments  to  the  Federal  Constitution, 
§   447;    to  fetter    a    discretion   given    by 
the  Federal  Constitution  to  State  legisla 
tures,  §§  448,449;  with  reference  to  their 
internal  relations,  express  and  implied.  M 
450-470;  with  reference  to  their  orgamza- 
tion.  to  the  maintenance  of  order,  and  to 
the  conduct  of  their  business,  §§  4o4-4o8 : 
to  arrest  or  punish  their  own  members  or 
^rangers.  §§  459-470;  to  prolong  or  per 
petuate  their  existence,  §§  -I'3-4'8; 
Precedent,  definition  of  the  term.  §  112. 
Presumptions,  constitutional,  doctrine  of, 

stated  and  explained,  §  25. 
Printing,  power  of  Conventions  to  furnish, 

members  of  Conventions,  §§ 


Promulgation  of  Constitutions,  §§  521-524. 
Punish,  power  of  Conventions  to,  their  own 
members  or  strangers,  §§  460-470. 

R. 

Ramsay,  Dr.,  opinion  of.  bearing  on  the 
question  of  American  nationality,  §  47; 
quoted,  as  to  the  character  of  the  first 
South  Carolina  Constitution,  §  134;  quo 
ted,  as  to  the  South  Carolina  Convention 
of  1778. 

Randolph,  Edmund,  Governor  of  >  irgmia, 
opinion  of.  as  to  the  function  and  duty  of  the 
federal  Convention,  §  40;  the  government 
of  the  Confederation  characterized  by, 
§  \>>-2,  note  1;  opinion  of.  as  to  the  powers 
of  Conventions,  §  309,  384. 
Randolph,  John,  of  Koanoke,  opinion  of,  as 

to  the  powers  of  Conventions,  §  310. 
Reconsideration,  relaxation  ot  rule  as  to, 

in  some  Conventions.  §  284. 
Reporters  tor  Conventions.  §  275. 
Reports  in  Conventions,  how  made,  §>> 
301 ;   disposition  made  of,  on   coming  in, 
§  302. 
Republics,    Democratic,   Constitutions    of, 

§  70. 

Resolutions,  of  the  Continental  Congress 
respecting  the  formation  of  government* 
in  the  colonies  independent  of  the  Crown, 
§§  128.  129. 

Revolution,  the  term,  defined,  §  109;  vari 
ous  kinds  of.  distinguished.  §  109;  conse 
quences  of.  and  erroneous  classification  of, 
as  great  and  small,  §  100;  importance  of 
defining  the  term,  and  reasons  of,  §  112; 
that  which  lies  within  the  domain  of,  not 
to  be  drawn  into  precedent,  §  112. 
Revolutionary  and  illegitimate,  the  two 

terms  distinguished,  §  113. 
Rhode  Island,  Convention  ot,  of  1824,  $$ 
219.  226,  do.  of  1834,  §§  219,  226;  do.  of 
1841  (under  the  charter),  §§  219,  226;  do. 
of  1842,  §§  219,  226:  do.  of  1841  (People's 
Convention),  §§  226-246. 
Rome,  development  of  nationality  ot.  §  H. 
Ruggles,  Mr.,  proposition  ot,  in  the  .New 
York  Convention  of  1846,  that  future  Con 
ventions  should  consist  of  two  chambers, 
§  270. 

Rules  of  Order,  in  Conventions,  §  284. 
Rutledge,   President,    of   South    Carolina, 
refusal  of,  to  assent  to  the  South  Carolina 
Constitution  of  1778,  §  136. 


471,  472. 


s. 

Schedule,  as  part  of  a  Constitution,  history 
and  uses  of,  §§  102,  103. 

Secession,  connection  of,  with  the  constitu 
tional  Convention,  §  3 ;  Convention  of  V  ir- 
ginia.  §  186. 

Sergeant-at-Arms,  employment  of,  in  Con 
ventions.  §§  454. 

Singleton,  Mr.,  of  Illinois,  resolution  of,  re 
specting  the  powers  of  Conventions,  §  310. 


560 


INDEX. 


South  Carolina,  advice  of  Congress  to.  with 
reference  to  founding  new  government  in, 
§  1-27:  Convention  of,  of  1776,  §§  133,  134; 
do.  of  1778,  §  135;  first  two  Constitutions 
of,  judicial  decision  respecting  validity  of, 
§  136  note  2  ,  Convention  of,  of  1790, 
§  219;  do.  of  1860,  §§  247-249;  do.  of  1865, 
§§  250-259. 

Sovereign,  the,  a  fundamental  conception 
in  this  inquiry,  §  17;  definition  of  the  term, 
§  18:  distinction  between,  and  supreme, 
§  18,  note  1;  the  States  were  never,  §§ 
49,  50;  is  the  Convention  possessed  of  sov 
ereign  powers?  §§  315-319;  can  Conven 
tions  limit  the,  in  the  choice  of  its  ser 
vants  ?  §  351. 

Sovereignty,  a  fundamental  conception  in 
this  inquiry,  §  17;  definition  of,  §  18  and 
note  2;  marks  of,  as  laid  down  by  Austin, 
§  19;  additional  marks  of,  §  20;  theories  as 
to  the  ground  of,  §  21,  note  2;  locus  of, 
theoretically  considered,  §  21;  direct  modes 
of  manifestation  of,  §  23 ;  indirect,  §  24 ;  con 
sidered  with  reference  to  historical  facts,  in 
foreign  states,  §  26;  do.  in  the  United 
States,  §§  27 ,  locus^  of,  as  indicated  by  the 
definition  of  sovereignty,  §  27;  as  indicated 
by  Austin's  marks  or  tests,  §  28;  as  indi 
cated  by  the  additional  marks  or  tests,  §  29 ; 
question  of  American  nationality,  as  bear 
ing  on  the  hcus  of,  §§  30-50;  it  the  United 
States  constitute  a  nation,  inheres  in  the 
nation,  or  people  of  the  United  States,  §  51 ; 
how  sovereignty  inheres  in  the  people  of  the 
United  States,' §§  54-61;  exercise  of,  how 
related  to  possession  of  original,  §  56;  reg 
ular  exercise  of,  distinguished  from  the 
possible  exercise  of,  §  56 ;  locus  of,  as  de 
termined  by  regular  exercise  of,  in  the 
United  States,  §§  56,  57;  circumstances 
indicating,  that  it  is  regularly  exercised  by 
the  people  of  the  United  States  as  dis 
criminated  into  groups  by  States,  §  57;  in 
what  capacity  the  States  exercise,  §  58; 
opinion  of  John  Austin,  as  to  locus  of,  in 
the  United  States,  §  60;  opinion  of  John 
C.  Kurd,  §  60;  do.  as  to  mode  in  which  it 
inheres  in  the  people  of  the  United  States, 
§  60;  opinion  of  Dr.  Brownson,  §  61;  of 
Conventions,  §§  307-311;  theory  of,  a  nov 
elty,  §  311,312;  connection  of  the  theory 
of  conventional,  with  the  rise  and  progress 
of  pro-slavery  fanaticism,  §  312  note  1 
State,  the  term,  how  employed  in  this  trea 
tise,  §  17,  note. 

States,  the,  were  never  sovereign,  §§  49,50; 
in  what  capacity  the,  exercise  sovereign 
powers,  §§  58,  59. 

States  Rights  School,  view  of,  as  to  the 
bearing  of  the  mode  of  ratifying  the  Fed 
eral  Constitution  on  the  question  of  Amer 
ican  nationality,  §  37. 

Story,  Joseph,  Justice,  opinion  of,  bearing 
on  the  question  of  American  nationality, 
§  48;  charge  of,  to  the  jury  in  the  Rhode 
Island  case,  §  230. 

Submission  of  Constitutions  to  the  people ; 
can  Conventions  be  bound  by  the  Acts  call 
ing  them,  to  make?  §§  410-418;  double, 


of  the  Kansas  Constitution  of  1857,  §§  415, 
416;  duty  of  Conventions  to  make,' in  gen 
eral,  §  479;  duty,  where  neither  the  Con 
vention  Act  nor  the  Constitution  requires 
it;  §  481;  duty,  where  submission  is  ex 
pressly  required  by  law,  §§  482,  483 ;  duty, 
where  submission  is  bv  law  expressly  dis 
pensed  with,  §§  484-486;  precedents  relat 
ing  to,  §§  487-495;  by  whom  it  should 
be  made,  §§  497-499;  to  whom  it  should 
be  made,  §§  500-509 ;  nature  of  the  Act 
performed  by  the  persons  or  body  to  whom 
it  is  made,  §§  510-513;  manner  in  which 
it  should  be  made,  §§  514-520. 

Suffrage,  true  theory  of,  §§  335-337. 

Sully,  remarks  of,  respecting  the  populace, 
§  26. 

Supreme,  distinguished  from  sovereign, 
§  18,  note  1. 


Taney,  Chief  Justice,  opinion  of,  in  the 
Khode  Island  case  of  Luther  v.  Borden  § 
231. 

Tennessee,  formation  into  a  State,  Conven 
tion  of,  of  1796,  §§  175-182;  do.  of  1834 
§§  217,  218;  do.  of  1861,  §§  247-249;  do! 
of  1865,  §§  250-259. 

Texas,  Convention  of,  of  1845,  §  195;  do. 
of  1861,  §§  247-249;  do.  of  1866,  §§  250- 
259. 

Topeka  Convention,  of  Kansas,  §§  211-212. 

Treaty,  with  France,  of  1803,  bearing  of,  on 
the  legitimacy  of  the  Conventions  called 
to  frame  the  first  Constitutions  of  Arkan 
sas,  Iowa,  and  Kansas,  §  197;  with  Spain 
of  1819,  bearing  of,  on  the  legitimacy  of 
the  Convention  called  to  frame  the  first 
Constitution  of  Florida,  §  197;  with  Mex 
ico,  of  1848,bearing  of,  on  the  legitimacy  of 
the  Conventions  called  to  frame  the  Con 
stitutions  of  California  and  Nevada,  §  197. 

Trumbull,  Lyman,  Senator,  speech  of,  re 
specting  the  submitting  of  amendments 
proposed  by  Congress  to  the  Federal  Con 
stitution  to  the  executive,  §  560. 

Tucker,  St.  George,  Judge,  opinion  of,  re 
specting  the  repealability  of  the  Virginia 
Constitution  of  1776,  §  138,  note  2. 


u. 

Union,  successive  schemes  of,  in  the  United 
States,  §§  34,35;  tendency  towards  a  con 
solidation  of,  the  most  prominent  charac 
teristic  of  American  constitutional  history, 
§  34;  possibility  of  a  compulsory,  contem 
plated  previously  to  1789,  §  41,  note  2. 

United  States,  'locus  of  sovereignty  in,  § 
27;  do  the,  constitute  a  nation,  §§* 30-50; 
development  of,  contrasted  with  that  of 
Rome,  §  33;  successive  steps  in  develop 
ment  of.  §§  34,  35;  Articles  of  Confedera 
tion  forming  first  regular  government  of, 
§§  159-162;  formation  of  the  present  Con 
stitution  of,  §§  163-167. 


INDEX. 


561 


V. 

Vermont,  Convention  of,  of  1777,  §§  153, 
154;  Convention,  or  Council  of  Censors  of, 
of  1785,  §  155 ;  Convention  of,  of  1786,  § 
155 ;  erection  of,  into  a  State,  and  admis 
sion  into  the  Union,  §§  171,  172;  Conven 
tions  of,  and  general  observations  on,  §  220, 
and  note  1. 

Veto  of  Roman  Tribunes  contrasted  with 
the  negative  of  an  American  executive,  §§ 
510,  511 ;  of  the  New  York  Council  of  Re 
vision  of  the  Convention  bill  of  1820,  Ap 
pendix  B.,  p.  5:18. 

Virginia,  resolutions  of,  of  1799,  §§  49,  50; 
advice  of  Congress  to,  relative  to  founding 
new  government  in,  §  127;  Convention  of, 
of  1776,  §  138;  resolutions  of  House  of 
Delegates  of,  recommending  a  general  Con 
vention  to  revise  the  Articles  of  Confeder 
ation,  §_163j_consent  of,  to  the  erection  of 
the  Kentucky  District  into  a  State,  §§  173, 
174;  Ordinance  of  Secession  passed  by,  § 
186 :  Reconstruction  Convention  of,  of  1861, 
§§  187-189;  Convention  of,  of  1829,  §  219; 
do.  of  1550,  §  219;  do.  of  1861  (Secession), 
§§  247-249;  do.  of  1864  (Reconstruction), 
§§  250-259. 

w. 


on  the  question  of  American  nationality, 

Webster,  Daniel,  opinion  of,  that  the  Con 
stitutions  of  the  States  and  of  the  Union 
should  be  kept  independent  of  each  other, 
§  95 ;  argument  of,  in  the  case  of  Luther 
v.  Borden,  §§  234,  235;  quotation  from,  in 
relation  to  rights  of  citizenship,  §  360;  do. 
in  relation  to  nature  of  the  act  of  a  legis 
lature  in  recommending  specific  amend 
ments  to  a  Constitution,  §  549. 

"Wells,  J.  Madison,  Governor  of  Louisiana, 
issues  writs  of  election  in  1866,  to  till  va 
cancies  in  the  reassembled  Convention  of 
1864,  §  475. 

"West  Virginia,  erection  of.  into  a  State,  §§ 
186-190;  validity  of  the  proceedings  re 
sulting  in,  considered,  §§  191-193 

Wilson,  James,  opinion  of,  respecting  the 
powers  of  the  Federal  Convention,  §§  43, 

Wisconsin,  Convention  of,  of  1846,  §  195; 

do.  of  1847,  §  196,  and  note  2. 
Wise,  Henry  A.,  opinion  of,  respecting  time 

necessary  to  make  a  good  Constitution,  § 

Wyandotte  Convention  of  Kansas,  §  216. 


Y. 


Washington,  Bushrod,  Justice,  decision  of,    Yancey,  William  L,  opinion  of  as  to  the 

^*r^^^ 

Washington,  George,  opinion  of,  bearing        Vermont,  §  lod. 


36 


THE  END. 


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